(3) this credit, which is an amount which can be subtracted from tax owing – which corresponds to a deduction of 600k – he or she is given a credit of the amount of estate tax that would have to be paid

(a) for smaller estate there is no tax owning, since is under the amount of what is owned

(4) unified credit of 192,800 – is the amount of what would have been paid on 600k

iv) each decedent gets a deduction – so it is divided between two parts of a couple

(1) if the surviving spouse has property that might go up in value, there might be taxable

(2) if the wife can live on the remaining income, it might be worth making a gift to the children

i) marital deduction: 1981 – unlimited marital deduction, which has the effect of treating the maried couple as a single unit for transfer tax purposes

i) a gift or death trasnfer from his or her wife to her husband is free of estatte tax

ii) was party enacted on the theory from one decedent – the property time is one generation to another

iii) the unlimited marital deduction has the effect of leaving the estate to the first spouse who dies is the one for estate tax (might want to check this)

iv) 1976-86: 3rd federal transfer tax (generation skipping)

(1) generation skipping transfer tax for 10 years that was retroactively appealed in 1976

(2) both taxes, on generation skipping transfers were designed to counteract a technique of estate planning

(a) For example family dispositions that don’t skip a generation. GM transmits wealth to daughter. At her death transfer wealth to GD – to the extend that the wealth in each state exceeds the exemption amount, the transmission of the wealth will be taxable to each generation

(b) generation skipping transfers might be made to reduce the income

(i) the simplest form of generation skipping transfer – this would mean that it would skip the death of the granddaughter

(ii) would be taxed a separate time at the death of the granddaughter

(iii) it means that the daughter would not have the benefit of the wealth during life

(iv) it means that they would not have the benefit of ill health, old age, or dependence

(v) in order to combine the estate tax advantages of generation skipping, it would mean that they are combing the things from grandmother, to daughter, to granddaughter

1. GM could pass the wealth at her death into a trust, and the income could go to the daughter, and at death, the rest to granddaughter – but there wouldn’t be any estate tax applied, because the daughter didn’t own the property, she only had an income interest

2. A single transfer of the corpus of the trust was made by the gm to the gd

a. The property was taxed in the property of the grantor, and it could be passed though one or more generations –

b. And it could mean that outright generations were taxable in the estates of the decedents

c. At her death, the beneficial enjoyment would transfer to the gd

d. A generation skipping transfer was employed

e. The only limit on the extent of these things

(3) 1976: new generation skipping tax was designed to close the avenue, as treating the entire property as though it had passed though the daughter (mid generation) – retroactively repealed

(4) 1986: ch 13 generation skipping tax

(a) we do have now a generation skipping tax in the form – the 1976 attempt was repealed retroactively

(b) a tax different in technique but similar in purpose was enacted but was presently the law

(c) congress enacted a carryover basis rule in the income tax -- 1980, but repealed

(i) income tax § 1014, donee of a testamentary rule takes a basis equal to the fmv of the value at death

(ii) § 1015 – intervivos transfer will be the same as the basis of the donor, except if the basis is greater than the fmv at the time of the gift, than the basis for determining loss shall be the lower amount

(iii) § 1014: testamentary, for gain and loss on later sale on exchange, takes the current fmv – so it escapes both in hands of decedent or recipient

(d) Grey area. Property sold between the loss basis rule and the gain basis rule

(i) And if neither basis rule is applicable… § 1.1015 – Regs. Say that neither gain not loss is realized

1. special basis in 10.1015a – within 1 year of death there is an exception

(e) new 5% surcharge bracket § 2001b, 2001c2, 2052a

(i) large transfers will be subject

(5) 1990: ch. 14 2701-04

(a) valuation rules for transfers in interests in corporations and trusts (replacing 2036c)

(6) 1993: maximum estate and gift tax rate at 55% for over 3m

j) very little revenue

i) due to marital deductions

ii) smaller % of the budget

2) estate tax ch 11: tax imposed on the transfer of property from the decedent to someone else

a) definition

i) gratuitous transfer of property

(1) transfer is defined as

(a) transfer at death – some property has to pass by virtue of the decedent’s death

(b) mere shift in beneficial enjoyment that vests because of someone death (for example remainder) is not a transfer from decedent

(2) property in which he has a bundle of rights to which he owns title

(3) 2033: all property to the extent of the interest therein of the decedent at the time of his death

(a) 2033

(i) law

1. highest state court[1]

a. lower courts are only persuasive (proper regard should be given to them)

2. but, once ownership is determined, the question of how that relates to federal tax law, is a federal question

(ii) property that they own -- interest must be a beneficial interest which survided him so that he could transfers, and that it could pass at his death to someone else

1. real estate

2. future interests (usually included) under § 2033

a. calculation

i. 6163: the executor can postpone payment of the portion of the estate tax that is generated, until 6 months after the preceding interest

b. must be vested

i. remainder

ii. reversionary interest

iii. executory interest

c. contingent remainder: an interest that may fail upon the occurrence or non-occurrence of a certain person or issue

i. if the interest was contingent, some courts held that the interest would not be included if it took possession or their enjoyment

ii. the decisive conditions was not whether the interest was vested or not, the question is whether or not it will be included in the gross estate under § 2033 at the time of death fact that it is a future interest goes to valuation

iii. any property that expires on the death, there will not be inclusion (even if someone’s enjoyment terminates) (there could be GST)

d. any property that expires on the death, there will not be inclusion (even if someone’s enjoyment terminates) (there could be GST)

3. bank accounts

4. profits paid by partnerships if those payments are for work done before his or her death

5. death benefits if they are not discretionary, and the widow or widower didn’t have any right to the payments

a. social security doesn’t count, because the decedent had no control, as they were fixed by statute

b. employee death benefits that are payable only to the beneficiary whom the employer designates, there is no estate tax –this is property not subject to the decedent

c. if they are payable to decedent or their estate don’t count, as they are transferred

6. stocks

7. dividends

8. bonds

a. even if the interest paid is exempt from federal income tax even if it is exempted in the hands of the bond holders

9. congress didn’t intent 2033 to grasp everything[2] -- property subject to an exercised general power of appointment is not included

a. congress didn’t intend the general rule of 2033 to attach everything to people before their deaths

10. tangible or intangible

11. cause of action that survive death

a. claims for wrongful death – if by the estate

i. survivor actions don’t count

ii. but damages that represent damages that the decedent had been entitled to during their lifetime (medical expenses), would count

b. if they represent damages (for example medical expense) they are included

12. accounts receivable

13. contractual rights

14. unincorporated business

15. stock in incorporated business

16. community property or an unincorporated business

17. property

a. interest in Tenants in Common will be included

b. legal title to property or an interest in property isn’t necessary

c. if the decedent owns property as a fiduciary for other people (for example trustee)

d. interest must be beneficial, not as a trustee (even if title technically remains in someone)

e. remainders

i. vested remainder in someone else – were generally conceded to be includible

ii. contingent remainder, if not destroyed by the death, and if it passes

18. payment made of profits of profits attributed to work before death

19. employee death beneficiary

a. no purely discretionary death benefits, if there was not right or ownership

b. if only employee designates, the employee doesn’t own the property, and it doesn’t pass by reason of their death – but it isn’t property transferred by the decedent

c. if employee death benefits pass to the estate they are payable

20. no lump sum payment from social security, since no control

(iii) § 691: IRD (Income in respect of decedent): things not received by accrued – all income in respect of a decedent that were not includible during the period of death or some prior period is includible in the estate tax

1. income tax return of the estate to include all items of income in respect of a decedent that were not includible in the taxable period covering the date of death or some taxable period

a. accrued rent or interest

b. things actually received must be filed in final tax return

c. becomes part of the estate if the estate acquires

d. DIRD: expenditures that were not paid yet by the decedent

i. if they were otherwise deductible, they are deductible under the estate

ii. expenditures that were accrued but not paid, that would not be included in the return would not be included, but if they accrued after death they would be,

iii. they are not property and do not get a fresh start basis under1014

iv. deferred payments included

e. deferred payments

f. income that was actually or constructively received doesn’t count (income tax)

2. § 691c: income tax deduction for a pro-rated portion that is attributable to the portion of the IRD in the estate tax

a. reduces the amount of taxable income by the amount that is used to pay the estate tax

(b) not limited to probate estate or is limited to claims of creditors

(i) 2039: death benefits

(ii) 2041: life insurance

(iii) 2042: power of appointment

(c) not every item of wealth become part of the gross estate under 2033

(i) JT – that passes doesn’t count

(ii) Expiring life tenancy doesn’t count

b) tax payable is equal to the tax rates * the tax base (18-55%)

i) credits can be subtracted from the tax

c) base computation – chapter 11

i) taxable estate gross estate minus deductions

(1) 2001 is amount of tax computed on the sum of the taxable estate at death to the extent that they exceed the gift tax that was paid

(a) If a taxpayer has made gifts of 100k each year (90k taxable). 1m @ death and total comes to 1.9m – the rates of the unified would be applied to the tax. Subtract for taxes paid during life

ii) Gross estate is defined as value of all property owned by the decedent owned at his or her death if that property passes by will or intestancy --must pass to someone else – the transmissio

(1) Cash

(2) Real estate

(3) Tpp

(4) Intangible personal property

(5) Life insurance proceeds

(6) Jointly owned property

(7) Some property that has been given away before his or her death, but is treated as if it were owned at death

(a) Often bigger than probate estate

(b) Often bigger than non-tax definitions

iii) Deductions

(1) Marital deduction

(2) Charities

(3) Graduated rates apply against the gross estate and all post 1976 gifts

iv) Credits

(1) Unified

(2) Credit for state death taxes subtracted from the amount of tax tentatively determined to be owning

(a) Intervivos transfers that are will substitutes Retained powers in transferred property (note: these are incomple for estate tax purposes)

(i) Must be transferred by the decedent – and powers retained or reacquired (whether exercised or not)

(ii) 2036-38 are called the grantor sections because they apply to questions where someone has reacquire the rights. Won’t apply when the property was not earlier transferred by him or her

1. 2036-38: basic question is whether the transferor retained the economic benefit of the property (2036a1)

a. examples of complete

i. powers to designate 2036a2

(iii) people given a life interest do not have something included in their estate

(b) transfers with a retained life estate – 2036a1: applies to property that the decedent formally owned or transferred (doesn’t count for acquisition or reacquisition)

(i) value of the entire property transferred will be included in the gross estate at death – will be includible only in the gross estate

(ii) not necessary that the estate be reserved in the same legal instrument

1. if the transferor retains a proportionate interest, only the portion in which this is retained will be includible in the estate

(iii) time periods

1. life

2. not ascertainable by death (for example no installment of the annual income shall be paid during the last year of his life)

3. no inclusion if the conditions didn’t actually happen

(iv) also applies to a retained secondary life estate – if the grantor retains the property in trust, and that at her death to him for his life, and at her death to their children

1. the value of the remainder will be included in his gross estate

2. if the right hadn’t taken effect in enjoyment at the time of his death

3. this does require inclusion as a result of the transfer

4. must reduce by the value of the preceding life estates

(v) exceptions for consideration under this section

1. Allen: congress intended the estate to include either the underlying property, or an amount equal in value to the underlying property, must be consideration for the underlying property

2. Gutchess: court won’t infer an agreement that two parties would life in the house.

3. Private or family annuity transactions, things made not in contemplation of death, in return for a promise to make periodic payments: payments are not income from the transferred property, but on some other cases, but in other cases, inclusion has been required.

a. 2036a1, income that has accumulated between the date of the of the gift and the corpus and the income – this is different between this and 2035

(c) powers to revoke 2038, 2036a2 – grantor sections. applies only when the property was both owned and transferred by the decedent, but it does not require that the power over the enjoyment by retained – it only has to be held by the decedent at his or her death

(i) if a property owner makes a transfer during his life and retains a power over the property such that he can alter, amend, revoke or terminate the transfer, and he if retains that power, and it is relinquished within 3 years of his death

1. transfer doesn’t become final or absolute, if he becomes able to alter, amend, or terminate the transfer

(ii) will be included if the power is held by two people it is still included -- exception for a power that is excersiseable by all parties having an interest in the transaction – and if the power adds nothing to the rights of the parties under local law

(iii) power to affect the time, possession, or nature of the property will be regarded as a 2038 power – gross estate, under 2036a2, which includes the power to determine who will enjoy it – value of any interest in property, which the decedent has transferred during his life, if the enjoyment of the property or its income is subject to a substantial management or control in the property

1. if the income is provided to be paid to wife for life, with remainder to children, if the grantor retained the power to invade for the wife

2. powers to terminate a trust

3. powers to accumulate and have it distributed

4. power to designate or possess the income

(iv) includes powers to alter or amend the property even if it isn’t in favor of D or his estate

1. exception for objective reasons

a. powers that are exercisable to mainting someone in some status is objective

(v) transfers for full consideration in money or money’s worth don’t get included

(vi) the difference between 2038 and 2036a2,

1. 2036a2, will apply only when the decedent has transfererd property and he has retained the power

a. 2036a2 will not apply to an acquired or reacquired power

2. power to revoke a trust would produce inclusion to the same extent would produce inclusion over both

3. power to change the timing under 2036a2, and also 2038

4. if the interest or the amount of property to be included, is greater than the amount to be included under the 1st rule – but the law has not settled whether the amounts are to be the same, but the regulations suggest that inclusion should be the same

a. they should both be analyzed

b. the right to designate the person or persons who shall enjoy the property,

5. 2038 probably will include such property in the gross estate over the property, but they will apparantly apply to a person who makes a gift to minors under ugtma, will probably give them the power to withhold the custodial property

a. if he isn’t the custodian, there won’t be such inclusion

(d) property is valued at the date of death of the decedant

(2) estate freezes: disposing of rapidly increasing assets

(a) Retention of the right to vote shares of a controlled stock, which had been given away would be considered to be a relinquishment of the property, but the relinquishment would be a transfer of the property by the decedent.

(i) (old to young recapitaliztion) one way to do this is to divide a corporation between voting preferred shares and nonvoting shares, but they will stand in a position to appreciate rapidly if the corporation increases in the future

(iii) senior generation is giving away a future interest in the corporation by giving the cs to the children

(b) ch14: -- 2701-2704 provides a means to value transfers between family members of interests in corporations, partnerships and trusts -- in a recapitalization and estate freeze, there won’t be the transfer tax advantage, that the family has sought, there won’t be the same value, if the interests that are retained, will be under these rules assigned a value of zero

(i) 2701 places a value of zero on a distribution, liquidation, put, call or conversion right, which is applicable to a corporation or partnership held by the transferor or a member of the transferor’s family

1. entire amount of the transfer is taxed as a gift – a zero value is put on the retained interest

(ii) exception to zero valuation

1. if the retained interest consists as a qualified payment, if there are one or one or a member of the transferor’s family immediately after the transfer, and as a result the entire value of the transfer is taxed as a gift

a. exception: if the transfer consists of a qualified payment, it would be regarded as a real transfer

2. 2701 doesn’t apply if market quotations are available

a. if the interest is of the same class of the same interest

b. the entire amount of the transfer is valued, and therefore taxed as a gift

3. interest is proportionately the same as the transferred interest, or it is the same as the voting power

(iii) 2702: retained interest in interests in trusts, if the transfer is made to, or for the benefit of the transfer’s family – doesn’t apply to incomplete (non-gift) transfers

(iv) 2703: value of property shall be determined without regard to any option, agreement, or any right to acquire or use the property at a price less than the fair market value, or any restriction on the right to use or sell such property ,

1. doesn’t appply if it a bone-fide business arrangement

2. doesn’t appply if it to be not a device to transfer to members of the D’s family for less than similar arrangements

3. doesn’t appply if it its terms are similar

(v) 2704: if there is a lapse of voting or liquidation rights in a corporation or partnership, the lapse is treated as a transfer by gift

1. the value of the transfer is the excess of the intersts held before the lapse over the value held after the lapse

(3) In general there will be a credit based on what was paid earlier

(a) The 10k gift tax will be applied

(b) The estate tax base, but not the gift tax includes the assets used to pay the tax

(i) The estate tax is tax inclusive – includes lifetime transfer, if those transfers are incomplete for estate tax purposes even if they are complete for gift tax purposes

(ii) The gift tax is tax exclusive

1. For example black-acre is 100k during his life, and the gift tax of 20k, the base was the 100k value of the property that was given. If the donor held the real property until death, the estate tax would apply not only to the property, but the property used to pay the estate tax.

2. There also might be some appreciation by the time of death

(4) § 2035 -- 3 year rule –

(a) may interact with other sections

(i) retention of life estate undre 2036a1: all the property in which the life estate was retained, the underlying property would be included in his estate, because he kept the benefits of owning it.

(ii) Old rule

a. If he keeps the remainder, and within 3 years of death, the person who retained the life estate, the person who had it, he would not be holding a retained life estate, the combination of 2035 and 2036 would result in inclusion of the entire property, because at the time of his death, the taxpayer would not earlier retain, but would mean that the retained life estate would have been transferred at death. Regs: if a decedent transferred an interest in property, or relinquished a property, his estate would include something that included a relinquishment until death

i. A power of appointment that was exercised, within 3 years before death, would be included, just as if he held it at death

ii. the valuation was considered to be the date of death or the alternate valuation date, it was the late, higher value that had to be included for transfer tax purposes

iii. if the transferree had made improvements or additions to the property, any enhancements or improvements, were not considered to be part of the gross estate

iv. any income received or improve wouldn’t be included

2. new rule: target is the appreciation of property which the decedent retained the enjoyment or control

a. no inclusion of deathbed transfers in the taxable estate, valuation of transfers made within 3 years of death will be the valuation at the date of the gift

b. certain gift tax inclusion transfers under § 2035d2: 2035 and the other sections are powerful

i. transfers of property which is included in the gross estate, of what would have been included under the other sections

c. the question then arises when the

d. § 2035c -- gross up rule gift tax paid within 3 years have to be included in the taxable estate

3. now two types of gifts that will be drawn in

a. gifts of an interest in property under 2036-38, 41-42 (constructive interest)

b. gifts of an interest in property that would have been included in the gross estate had he retained until death 2035d

i. 2035/2036a1: if F owns BA and WA, and conveys WA to son, retaining a LE in it, and gives away BA without strings, as well as the LE in WA. Value of WA would be included under 2035 because it would have been included under 2036 if it had been retained until death. Value of BA won’t be included, even if it is transferred within 3 years of death. Property drawn back in (WA) will be transferred as of the date of death

ii. 2035d2 prevents life estate transfers are inherently testamentary, but an outright gift seems somewhat less testamentary, than the two step disposition

iii. gifts of any size with respect to life insurance, or gifts with respect to which gift splitting was elected, will all be drawn back into the gross estate.

iv. Property that isn’t drawn back into the estate doesn’t get a fresh start

v. 2035 increases the gross estate by any gift tax paid, within the 3 years period, and it guarantees that if taxable string is released within the 3 year period, the decedent will be treated as if the string had been retained until death – doesn’t cover sales, or small gifts

(b) reason: each tax would get a new start up the rate scale

(c) old rule: subjective intent as to contemplation of death (3 year rebuttable presumption)

b) if the decedent owns some property at his or her death which doesn’t even pass to the decedent, than the estate tax won’t apply. –

i) even if there is a transfer of economic benefit, it doesn’t mean that there is a transfer

(1) for example

(a) life estates that expire on the death of the holder don’t transfer at death

(b) for example O to A for life remainder to B. A will enjoy for life, but her heirs will not get it. Therefore A will not own it.

(i) No estate tax of it in her estate.

(ii) Remainder interest is treated as passing from and though the estate of the original grantor

(2) A gift, whether inter-vivos or testamentary, put in trust, with income to someone else would be taxed as a gratuitous transfer by the grantor grandmother, but the other would not occasion any further transfer tax taken alone

(a) To the effect of any further estate tax would not take on any further estate tax became the basis of a lot of tax planning advice

(b) The disposition accomplishes what is known as generation skipping

(i) The result is that the property has gotten into the hands of the granddaughter without passing through one generation

(c) Could simulate ownership by giving the son a nongeneral power of appointment of the property without making it taxable, and non-general power of appointment – nearly the equivalent

(i) Son could get the power to invade the corpus for health, education. Etc.

(ii) Son could get a 5 and 5 power to withdraw part of the corpus

1. It wouldn’t be treated as his property, so long as he didn’t exercise

(iii) Another trustee could be given the power to invade the trust even more for the son

(d) Even if he has nearly the equivalent of ownership, no transfer tax has to be paid so long as the interests are no above the threshold amount

(3) To allow these generation skips was creating policy reasons

(a) Possible reforms

(i) Cut down on the form (tighten ideas of constructive ownership)

(ii) Inheritance (or accessions tax)

(iii) Treat inheritance as income under the income tax

(iv) Impose an additional tax on the original disposition, if the disposition had a generation skipping effect

(v) 1976-86: Tax at the time the person in the skipped generation dies (intermediate)

1. complex to comprehend and computer

(b) solution: imposed on “generation skipping transfers” on wealth generations where they are “one or more generations younger’ and whether they “escape estate tax”. Only includes direct skips, taxable transfers, and terminations.

(i) direct skip is defined as

1. estate or gift transfer to a skipped person that is made outright or in trust

(ii) taxable distribution is defined as

1. a distribution to a skip person

a. for example distribution from trust

(iii) taxable termination is defined as

1. shift of the beneficial enjoyment to a skipped generation

c) Note: no credit is given for prior transfer tax owned –

d) Rate at highest

e) No relief for other tax paid (if property held before)

f) No unified credit

g) Exemption – to every taxpayer

i) 1m of direct skip or distribution

ii) grandparent can make a gift for medial or education expenses without tax to child if it meets 2503e

iii) an individual pays the same tax on a direct skip to a gc, as it is to a great grandchild

h) taxable amount is the value that is received by the transferee

i) tax exclusive – no tax on tax

j) 2515 – payment of the transfer tax is, itself, a taxable gift

i) to transfer money to the gc, the gp has to transfer a bit less than with a direct transfer

a) Question as to whether or not a gratuitous transfer of property has occurred

7) § 2037: transfers taking effect at death: Transfers that are substitutes for death transfers

a) property that is transferred in such a way that the transfer resembles a transfer at death, in that it is only upon the death of the transferor, and only by surviving the transferor that someone can possess the property

i) § 2037 tests two conditions necessary for inclusion -- if either is not met, it won’t include the property or any interest in it, in the gross estate of the decedant

(1) survivorship requirement (for example can take possession only by surviving)

(2) must be the case that the decedent retained some form of reversionary interest, and the value of this interest, exceeded 5% of the value of the property (immediately before the death)

(a) could be subject to a power of disposition

(b) includes a possibility that property may return to his estate or may become subject to a power of disposition by him, but doesn’t include the possible that the income alone may become subject to a power of disposition by him

(i) refers to any reserved right under which the transferred property under which it should return to the grantor

(ii) does not include the possibility that the decedent might inherent the property back form someone it has been transferred

ii) purpose of 2037 is to tax transfers that are will substitutes.

iii) When a transfer will take effect only at the deal of the transferor, and if it true that all along, there was a substantial likelihood that the interest transferred to his estate will be included, the property should be included in the gross estate

iv) Size of the interest (if above 5%):

(1) No subtraction is made for non-outstanding interests

(2)

b) There are always other inclusionary exceptions that might apply – if the survivorship requirement is not met, than § 2033 will cause inclusion, if that interest survived the death of the decadent and than was transferred to someone else

i) Goes if someone transferred the property and if they retained the interest

c) Exception to § 2037 to bone fide sale

8) telling who is the grantor and § 2036 Reciprocal trusts: no inclusion if not grantor –

a) Substance over form

i) If A transfers to B, as an inducement for a transfer to A for life with remainder, A will be viewed as the grantor of retained property with a retained life estate

ii) Suppose that there is a transfer of two equal trusts for each other, in consideration of each other, each spouse will be attributed to the other

(1) Husband will be treated as the settlor of the trust for his benefit

(2) Each will be seen to have transferred property and retained a life estate and included in both

b) Possible for a person to be treated as the grantor of a trust, and the transferor of property, even if they are not technically the transferor

9) Consideration for §§ 2035-38: general rule not included if there is inclusion

a) Marital rights: § 2043 states that a promised relinquishment of dower or courtesy or of other marital rights shall not be considered to be a consideration in money or money’s worth, is not considered to be a consideration in money or money’s worth

10) Incomplete transfers and their gift tax consequences

a) Question arises as to whether a transfer that will produce a transfer will produce gift tax consequences at the time that the transfer is first made

b) A revokable transfer is not a completed gift, and it becomes complete, only when the transferor gives up or retains the gift

c) § 2036a1, gift in trust with a reserved life estate:

i) estate tax inclusion will come about at the time of the death

ii) there is a gift at the time of the transfer of the interest transferred – the remainder. The value of life estate will be subtracted from the total value of the property to determine the value of the gift from which the gift tax will apply.

(1) Retained interests are not transferred

(2) Taxpayer bears the burden of valuing that interest as well as identifying it.

iii) Transfer, but power to alter or amend the transfer (2038 or 2036a2 power)

(1) The estate tax will view the gift as incomplete during life

(2) But the grantor has not retained the power to revoke, so, the gift is complete, for gift tax purposes it will be regarded as incomplete because of the power to alter the beneficiaries – the gift will be complete only at the time that the donor relinquishes the power

(a) For gift tax purposes, the question is not whether he has parted with the property, but whether or not the donor has so parted with dominion and control, as to leave no power in it in himself

(i) Transfer of the property is incomplete until there is no more power to change the beneficiaries but not until manner or time or enjoyment or fiduciary power

iv) § 2037, conditional transfers

(1) a retained reversionary interest, is met, because x y and z can take possession, only by surviving the decedent

(2) if the reversionary interest exceeds 5% of the property, it will be included, as it was incomplete until the transferor’s death

(a) interest will be the value to be the property transferred minus the value of the retained life estate

(b) reversion retained by the transferor will reduce the amount that is taxable

(c) if the reversionary interest were worth less than 5%, the small reversionary interest would still reduce the amount of the gift for gift tax purposes

(3) retained powers or interest rendering things incomplete

(a) question is whether or not they have parted in dominion and control and over its disposition, nor have they retained a power over the disposition over the property for himself or for others, a completed gift will have been made, and the gift is not complete for gift tax purposes (not taxable)

(b) gifts will not be complete because of the retention of some managerial powers

(i) question is whether a co-manager has a substantial adverse interest, and the retention of the power will render the gift incomplete for gift tax purposes

(4) differences between gift and income tax

(a) can be different definitions of complete v. incomplete

11) Community property § 2040, and old § 2515 and Jointly owned property

a) Estate tax

i) JT:

(1) JTROS: other tenant becomes the owner of the entire property by virtue of how the property was held

(2) Property does not pass by will or intestacy

(3) Decedent’s right in the property terminated at his or her death, or if one of them severs or particians their interests

(a) Looks like a deathtime transfer, but it isn’t

(4) Bank account: each despoitor has a right of survivorship and the rights to withdraw it

ii) Community property

(1) Most places the spouses are viewed as having a vested property right of the property

(2) 2040a, of the IRC, decrees that a decedent gross estate includes the value of any estate held by him with right of survivorship – the entire value is included in the value of the estate of the first joint owner to die – except for anything that can be said to be the value of anything that can be the consideration in money or money’s worth

(a) it is not just the decedent’s interest, but all the property, except for the full consideration exception

(b) if, taxpayer A gives $50k to taxpayer B, and B invests that $50k, than upon A’s death there will be inclusion of the entire property in A’s estate (this was as a gift), but if some of the value of the joint property is attributed to consideration independently furnished, is that percentage of the value of the property at the decedent’s death

(3) 2040 in a non-spousal context

(a) fraction of the purchase price that each unrelated person pays will determine what is includible in each person’s gross estate

(b) tracing is often required

(c) at A’s death the entire property would be included in A’s gross estate

(d) if A had given some cash from his separate property to B, so that A joined in his consideration of the property

(4) 2040 in spouses

(a) 2040b: JT between spouses, notwithstanding 2040a, in the case of a qualified joint interest, the value to be included in the gross estate is ½ the value of the joint interest

(b) includes TIE, or JTROS, but only if the decedent and the spouse are the only joint tenants

(i) TIE:

(ii) Tenants in Common: no rights of survivorship, each tenant has a separate undivided interest in the property that they can transmit during life

1. Surviving tenant in a Tenants in Common doesn’t become automatically entitled to the co-tenant’s interest

2. Rule for Tenants in Common; property held by a decedent in a Tenants in Common will be included under § 2033

a. ½ will be included in the gross estate of either tenant who died

(iii) 2040b2: all JT tenancies between spouses are qualified joint interests, and ½ of them are qualified in the first to die

1. doesn’t matter so much with marital deduction

(c) it is true that 2035d2 will apply in such a case to gross up the amount of the gift by the amount of the gift taxes paid

b) gift tax

i) unlimited marital deduction

ii) if a JTROS is formed with joint owners who are not spouses, the results are governed by general gift principles

(1) if one of the JT contributes a proportionate share, and the tenancy can be severed, no gift tax consequences will be made at that time

(2) if A and B purchase property for 100k, and take title as joint owners, and if A contributes the entire purchase price, he or she will be deemed to have made a gift to B, or if it is proportionate

(3) Joint tenancy could be severed by either tenant, and either one could obtain the proportionate share of the property

(a) If JTROS is formed with joint owners who are spouses, there won’t be gift tax payable because of § 2523 of the gift tax law

iii) 2040 no longer depends on §§ 2515, and 2515a

12) Life insurance § 2042

a) Not limited to just a commercial life insurance policy

i) Can be term insurance, or ordinary life insurance as well as other things

ii) Insured person pays premiums to the insurance company

iii) At the death, the insured pays premiums to beneficiaries

b) Death of the insured is the time that things are transferred

c) Estate tax treatment – two rules

i) § 2042(1) requires that the value of the decedent’s GE must include the value of all property to the extent that it is receivable by the debtor

(1) insurance proceeds by or for the benefit they must be included

(2) if state law gives them directly to the beneficiaries (not the estate) they are not deemed to be includible

ii) will include the amount receivable by all other parties, provided that the decedent possessed any of the incidents of ownership

(1) right of the insured to the economic benefits of the policy (including the power to assign, change policy, etc.)

(2) if the insured takes out a policy on his right or retains the right to cash it in, or to borrow on the policy, because it is property whose economic benefit he held before death

(a) decedent will be deemed to possess incidents of ownership at his death, if he or she hs the general legal power to – whether or not they actually can at the moment

(i) (Noel: just because one has the incidents of ownership, though physically disabled)

(3) mere possession of the incidents of ownership in a fiduciary capacity doesn’t count

(4) group term policies: if the employee has the right to designate and redesignate a beneficiary that he owns

d) escape from tax: if the insured makes them payable to beneficiaries other than his estate or his executor, or no powers to appoint or surrender, or borrow

e) amount included is the full amount receiveable

i) if the proceeds are payable over a period of years

(1) if the policy proceeds are paid in lump sum, than lump sum

(2) amount used by the insurance company to determine the amount of the annuity given

ii) lump sum

f) community property

i) ½ of the interpolated terminal reserve or replacement cost value of the policy will be included in the wife’s estate when she dies if the husband died first

ii) revocable transfers in community property, as it is only revocable when the last spouse dies. Afterwards the wife will have been deemed to have made a gift of her ½ interest in the policy

iii) if 2 insurance policies are purchased with community funds on H and W with the other spouse as beneficiary, ½ of his policy is included under 2032, and ½ the value of the other is included under 2033

(1) if the policy has value, because it has a cash surrender, if it is term, it will be consdiered as zero

g) other inclusion rules

i) if the decedent had none of the incidents of ownership, and no transfer, than no part of the proceeds would be includible

ii) does not apply to the value of rights of an insurance policy on the life of a person other than the decedent, though other rules will apply

(1) death benefits may be classified under § 2039

iii) the proceeds will not be includible if they are not payable to the estate, if they didn’t have any of the incidents of ownership

(1) old test: includible if they were making premium payments

iv) § 2035 (transfers within 3 years)

(1) if a person holds a life insurance policy on her life, and she has been paying the premiums, and she has all the incidents of ownership, if she transfers within 3 years of death she will be treated (under § 2035d1) that the combination of § 2035a and § 2035d2 to apply – she should life more than 3 years from when she transfers

(2) transfers more than 3 years before her death, but with payment of premiums: the fact that she continued paying the premiums, or at least in the amount payable within three years of death will be includible in their gross estate

(a) new rule: No inclusion even for the premiums pay by the decedent within 3 years of her death

(b) old rule: while no part of the proceeds are to be includible in the gross estate, the amount of premiums payable within 3 years of death are to be includible (at least before 1981).

(3) If an insured takes out an insurance policy within 3 years and pays the premiums

(a) Purchase and gift, than 2035 applies to impose a tax on the proceeds

(b) If the insurance is taken out within 3 years of the decedants death by the beneficiary, the proceeds are includible under § 2035, even though there hasn’t been any transfer

(i) After 1981, look to § 2035d2 (different than § 2035a): if the decedent never possessed any incidents of ownership, but just paid the premiums (and had no interest) the proceeds would not be included in the GE. But, it would be the subject of an intervivos distribution

(ii) For example

1. Revocable transfers

a. One in which the transferor retained a life estate, 2038, or 2036a

b. Since the provisions of 2042, are not exclusive, other code sections, might in principle be applied, if they would include more – but most of the time 2042 includes more

i. Power of appointment that would produce inclusion, for example

h) inclusionary principles only cover insurance on the life of the decedent, everything else is under different sections

i) if the insured person has died before the decedent, proceeds will simply be cash under § 2033

ii) § 2035b2 includes language that provides that life insurance with restricted rights is not eligible for the exclusion in favor of transfers that are beneath the amount that us below the $10,00 annual exclusion

i) gift tax consequences of life insurance

i) § 2035b2 includes language that provides that life insurance will be treated as a present interest if it is completely surrendered else it is a future interest

ii) on life of donor

(1) gift can be transferring the policy

(2) paying premiums on his or her own life when the policy is owned by another person, whether or not it was ever the subject of a transfer: insured has made a gift of the value of the policy, or to the extend of the premiums paid

(a) timing for gift tax purposes: complete when the donor has divested himself of all incidents of ownership and all dominion and control of the policy

(i) if they transferred everything except for the right to designate, it isn’t included, because it could be sold

(ii) holder of the right to designate the beneficiary conceivable could be

(iii)if the donee of the transfer, were there is a retained power of appointment, a completed gift is deemed to be taking effect then

(b) strong incentive to transfer them, in order to avoid inclusion in the gross estate, so long as he doesn’t do it within 3 years of death, and shouldn’t retain any reversionary interest or any power to revest the economic benefits,

iii) on life of some other person

(1) donor is making a transfer of property of the life insurance of someone else

j) valuation

i) policy’s cost

ii) other similar policies

iii) if not, adding to the interpolated terminal reserve of the policy the proportionate part of the gross premium before the date of the gift, which cover the part that extends beyond the date of the gift

13) annuities § 2039 is defined as payment or the right to a period of payments for a period of time, such as they are a right to a payment for a term of years

a) other sections

i) If the estate of the primary annuitant is entitle to a refund at her death, 2033 will bring the refund itself into the estate for estate tax purposes

ii) 2036 or 37 might apply if the taxpayer has an option to take a lower joint and survivor annuity if the exercise of the option amounts to a transfer of a retained life estate

b) private annuities

i) to close associate, to be made to the annuitant and other people

ii) this kind of arrangement is subject to testing under § 2039, or § 2036 – to see if there are any strings attached

(1) if there is a tranfer with a retained life estate, either because the transfer is security, than § 2036 will require the inclusion of *all of the transferred property, not just the value of the annuity*

c) gross estate will include the value of an annuity receivable by any beneficiary under any form of contract entered into, other than as insurance policies on the life of the decedent, either alone for his life, or for any period not ascertainable by his death

i) time of death is defined as having received the payment, and the decedent possessed the right to receive

d) for example annuity purchased for self, money is transferred in return for a promise in return for a promise to pay $80k to the taxpayer

i) taxpayer is defined as annuitant

ii) each payment each year is a payment of the annuity

iii) general rule of § 2039b is that only include such part as is proportionate to that part of the purchase price contributed by the decedent.

(1) single life non-refund annuity (one payment in exchange from streams), no tax consequences, because nothing transfers

(a) no inclusion under § 2039, since no one takes by reason of survival

(b) this is simply an expiration at death

(2) annuity contract that goes into effect at death for someone else

(a) no estate tax under § 2039, because she didn’t have any interest in the annuity

(b) gift tax would apply, though

(3) single life refund annuity: if the annuity period comes to an end, before a number of payments have been paid, the company will pay a refund

(a) something that pays to someone after death, will produce estate tax consequences

(b) § 2033, refund to the estate

(4) self and survivor annuity: upon the death of the primary annuity the annual payments will be paid to another

(a) something that pays to someone after death, will produce estate tax consequences

(5) joint and survivor annuity: specified sum will be paid each year to two annuitants jointly, and than a same or smaller amount will be paid to a survivor

(a) annuity results in a transfer that shifts to the survivor at the first annuitant

(6) employer annuities: purchased by an employer for an employee

(a) § 2039b says that any contribution by a decedent’s employer (or former) is to be considered as contirbuted by the decedent, if it was made by reason of his employment – will be included even if there is no direct contribution

(i) if an employer selects the beneficiaries, and if the employee never gets anything, § 2039 will not include the value of the payments to anyone

(ii) if the employee has a power to designate the beneficiaries, there might be a § 2031 power of appointment

(b) ss doesn’t count, because it isn’t a contract

(c) gratuitous things don’t count

(d) if the right is forfeitable as a result of events that are not in the control of the employee, it won’t be included

(e) but if the right was not forfeitable, or only forfeitable only within the control, than she will be deemed to have an enforceable right

(7) included: amount that is receivable by the beneficiary valued at death, prorated to take into account any other contribution

(a) any funds she holds from previous things will be included under § 2033

e) community property must be done under general principle

f) gift tax principles and annuities

i) a taxable gift may be involved if one person purchases an annuity solely for the befit of another person

(1) the purchaser may be making a transfer to another person

(2) need to determine when the transfer is complete

(3) if there is anything offsetting

(4) whether it is offsetting

(5) if there is to be inclusion, what amount is to be included

(6) if it is a future interest, it is not eligible for the annual per donee exclusion

14) Power of appointment : power over property that is held in trust or otherwise, that is exercisable either during life or death, or by will to determine who will become the income from property. Exercsise is like a transfer

a) Estate: § 2541: will include the value of property the with respect to which the decedent, exercised, released, the power of appointment – whether or not or how it was exercised, released or held

i) Power of appointment for estate tax: all power of appointment regardless of the technical words, or local property law connotations (for example power to invade a trust is a power of appointment

(1) Power to affect the enjoyment of trust property or its income is considered to be a power of appointment

(a) Powers to terminate would count under § 2041

(2) Two categories of power of appointment: will include the value overall property in which the decedent has a general power of appointment, or has at any time they have exercised or released a general power of appointment, if it was something that would have made it be included. There mere possession of the power, is treated as such an important component of ownership that the decedent should be subject to transfer tax.

(a) General power of appointment: unrestricted selection of beneficiaries:

(i) Similar to beneficial power because it can be exercised in favor of the holder

(ii) One could argue this is similar to beneficial ownership

(iii)§ 2041b1 direct or indirect: defines a general power of appointment as something that can be exercisable in favor of his estate, his creditors, etc. the decedent, or the creditors of his estate

1. exceptions

a. powers to consume, invade or appropriate property for the benefit of the decedent based on an ascertainable standard

b. jointly: if the other person is the creator of the interest, or the other person has an adverse interest

(iv) testamentary powers are included! – because she could have changed that result by an exercise of that result, because she chose not to do so

(v) questions

1. whether it was a general power of appointment that was held by the decedent at the time of death, or exercise at the time of his death

2. if the decedent held a general power of appointment, it is taxable, whether or not it was actually exercised. – will be effective whenever it is deemed to take effect

3. if the power is contingent on another event, and that event has not occurred, the decedent will not be deemed to have held the power

a. if the decedan’t power is one that is not a general power under estate tax law

4. creation of another power of appointment: § 2041a3 provides that property will be included, if the decedent by his or her will, actually exercises the power, by creating another power, it is included only if the second power can be validly exercised as a matter of state law so as to postpone the vesting of such property for a period that is determined without regard as to the date that the first power was created

a. if, by will someone appoints someone as life beneficiary and gives someone a power to appoint the remainder, and this postpones the vesting of the estate under state law

5. exercised general power of appointment -- § 2041 does require if a general power of appointment is exercised or released during life (like incomplete until death circumstances of 2035-38)

a. if it is property with respect to which the decedent at any time exercise or releaed a general power of appointment a disposition equivilent to a general power of appointment owned by him. For example a power that is used to appoint a remainder to someone while retaining a life interest

b. the release or lapse of a power of appointment is treated as an exercise of the power.

c. The lapse of a power is treated as an amount exercising the power and is treated as if it was exercised. If someone releases the power, it will be included in the estate, if he had transferred the property itself it would have been included under 2035-38

6. Exception where the power is permitted to lapse, if it didn’t exceed 5 or 5, whichever is greater.

a. Usually it is by year

b. The amount which exceeds the greater of 5 or 5 will be considered with 2041a2 or 2046a2 – they have transferred the property subject to the unused power to the reamindermen

c. If something is irrevocably exercised, or released, etc. it won’t be included if it is 1) not within 3 years of death and 2) the former holder of the power retains no interest or control of the property !

d. Inclusion of power of appointment

i. Gross estate will include all of the property that is subject to which the decedent held at their death, or had exercised in a way that is covered under 2041

ii. If a power of appointment exists only as to a limited interest, it will apply only to such interests or such parts

iii. If there is an overlap between 2041 and 2048 – § 2041 will not be allowed to reduce the amount of an inclusion – power of appointment doesn’t exclude the amounts reserved by the decedent to his own

7. Disclaimer of renunciation of a general power of appointment not a release of such power

(b) Special power of appointment: can only be exercise in favor of a restricted group of beneficiaries

(i) Non-taxable power of appointment:

(3) Holder of the power doesn’t need to have owned, or ever owned the property to be taxable. § 2041 is not a grantor section.

b) Gift: § 2514b: exercise or release of a general power of appointment shall be deemed to be a transfer of property by the individual who possessed the power, but the disclaimer will be treated as a disclaimer

i) Lapses will treated as lapses out of 5/5

ii) Definition of general power of appointment for gift tax purposes under 2514c, is like estate tax definition

iii) Lifetime taxes or relese are treated as a release by the gift tax

iv) The exercise, which creates another power, under state law, can be exercised so as to postpne vesting, for a period without regard to the creation of the first power, will be treated as a holding by the first power

v) Term doesn’t include powers reserved by a donor to his or herself

(1) The power of an owner of a property to dispose of his own interest is includible under 2511, without regard to 2514

(2) If a trust is created by H, and it provides for income to W, with power in the wife to appoint the property to a class of people, and a further unlimited testamentary power if W exercises the intervivos power in favor of her children, this is a taxable gift! This also constitutes a relinquishment of her general power of appointment by will.

vi) Gift tax treats someone who exercises a power of appointment, even in favor of the person who would take in default, much as the same way they would have taken the same power that they exercise

(1) By exercising the general power in favor of someone else, they are giving power that they could have given to someone else

(a) The exercise of a non-general power of appointment, isn’t taken as a gift, except under 2514d, when it is used to suspend.

(b) Generally one has to apply general gift tax principles as to the complete, etc.

15) Inclusion – is separate from the valuation

a) When applying an inclusion rule, first ask whether anything at all will have to be included in the estate

b) Once it has been determined that an interest is to be included

16) Valuation

a) Fair market value of the property in which the interest is held

b) Determine size of interest

i) For example gift

(1) What property has been the subject matter of the gift

(2) Separate question of how the includible interest shall be valued

c) § 2031 and § 2033

i) § 2033

(1) if property is included, value shall be the value the date of death, unless there is an alternate valuation date

(a) the fair market value is defined as the price in which things would change hands between a willing buying and seller

(b) not the price of a forced sale

(c) not the price in which some item is sold to the public

(d) stocks and bonds – fair market value per share or per bond on the valuation date, on bid and ask prices, or based on the soundness, the interest yield, date of maturity

(i) stocks will look at fundamentals

(e) unlisted stocks will include all relevant factors – including similar corporations

(f) note: special rules for valuing the transfer of a corporation, and what goes to a family member. See estate freeze issue – under § 2701

(g) interest in a partnership is valued at the amount that a willing buyer would pay a seller

(h) promissory notes valued at the value of unpaid intest

(i) cash at value

(j) household effects is willing buyer and seller

(2) see 25.2703 which contains rules for property subject to options and agreements if the contract has been changed after 1990

(3) capitalization approach takes the income from property and capitalizes it at some rate or other

(4) annuities, life estates, terms for years

(a) longevity of the person who is alive on the valuation date becomes central, becomes central –

ii) ch 14 – 2701-04 valuation rules for transfers of interests in corporations and partnerships and trusts when those transfers took place between family members

(1) family might recapitalize the corporation, and the senior general in the family might give the common stock in the younger generation, holds most of the value in the corporation, and the future is speculative, and the future holds the dividend rate in the preferred stock

(2) this is what keeps the property that has high value, but other things that have low value – the point that has the big vale – the potential is to get this out of the hands of the corporation between their deaths

(3) § 2701 places a value of zero on a distribution, put, call or conversation rite, which applies to an applicable retained interest on family transfers, this means that if property is given away, but is subject to some sort of right that would reduce its value, that right will be valued at zero, and therefore the entire amount of the property will be taxed as a gift

(a) exception: qualified payment is a dividend payment payable on a qualified basis, to the extent that it is determined at a fixed rate

(b) 2701 doesn’t apply if market quotations are available, or the retained interest is of the same class

(c) 2701 doesn’t apply if the retained interest is proportionately the same as the transferred ownership without regarded to non-lapsing differences in voting power

(4) 2702: interests in trusts, they will be a zero value in the retained interest and therefore increases the amount which will be applicable by the transfer trust

(a) 2702 doesn’t apply to incomplete non-gift transfers

(5) 2703: value of property shall be determined without regard to any option, agreement, or price less than fair market value, or any restriction on the right to sell or use this property .

(a) doesn’t apply if the option meets three requirements

(i) bone-fide business arrangements

(ii) not a device to transfers for less than full consideration

(iii) similar to arms-length transaction

(6) 2704: if there is a lapse of voting rights in a partnership, and if the individual and their family hold the interest, it will be treated as a gift

(a) value is the excess of the interest held before the lapse over the value after the lapse 25.2704

iii) special use valuation… 2032A of the code

(1) only for estate – can be an election with respect to qualifying farm and small business real property, qualifying property can be viewed at less than its fair market value

(a) this is to keep things in their current use (for example farms as farms) – fair market value is usually for highest and best use

(2) to qualify

(a) must have been used as a farm

(b) or a small business

(c) must be family owned

(d) must pass to qualified heir

iv) alternative valuation date – § 2032

(1) executor can elect to value everything according to alternatve valuation rules, provides that property included in the gross estate, which hasn’t been sold, shall be valued as of that date

(2) if this election is made, and there e is property that has been sold, exchanged, etc. that property must be valued as of the disposition, sale, etc.

(3) any interest that is to be effected by a mere lapse of time, it is to be valued as of the date of death, any interest that is effected by a mere lapse of time (for example patent, life estate, etc.)

(a) original purpose was to soften the impact of the estate tax, and the drop in property values

(b) the alternate valuation date must be elected, if it is elected it applies to all of the property in the estate, not just to the exceptions. Can only be used if the effect is to decrease the value of the gross estate, the gift estate and the generation skipping tax.

(c) Now, income earned from the GE between the death and the avd, doesn’t count. But incomes other things

(i) Included property continues to be the same for valuation purposes

(ii) Property earned or accrued after the date of the decedent’s death, is excluded in valuing the decedent’s estate

d) Property that has been transferred during life

i) Value at death of the property that was actually transferred

ii) If the gift was made in the form of cash, the value is the value of the cash gift

iii) 2035: neither income received after the transfer, nor property that is purchased with the money is to be included in the estate

(1) stock dividends won’t be included

iv) retained powers

(1) 2036a2: powers of revocation will cause the full value of what could have been gotten back will be included – including what was purchased.

(a) If the power at death pertained only to some interests, than § 2038 would require the inclusion only of the value of that interest

(b) If a decedent dies with the power to alter or designate the beneficiaries are under 2036a2 or 2038

(c) Income that was accumulated and added to trust principle after the gift and before death had to be included in the estate

(i) Some say that a retained 2036 or 38 power, makes it incomplete, makes things incomplete until death

(2) Consideration that is received in return for an incomplete inter-vivos transfer

(a) Value of the consideration shall be determined at the time of the exchange – not based on subsequent facts

(b) In determining whether adequate and full consideration was received, the value is determined at the time it was received

e) Valuation for gift tax purposes

i) 2512: gift in the form of property, will be valued at the date of the gift

ii) if property is valued at less than full consideration in money or money’s worth, than the value will be established as of the date of the gift

(1) the clause value as of the date of the date of the gift is the price that the property would change hands between a willing buyer and seller

(2) Rev. rul 93-12: corporate control in the family won’t be considered in considering the corporate control in transfers between children

iii) Note: 2701 and its regs for corps

iv) 2702 for trusts to family members

v) no alternative valuation date

vi) no special valuation procedures for farms, and businesses

17) Unified credit provides a credit that is constant – comes off the bottom. Every estate that rises above the exemption equivalent gets the same benefit, even though it operates as a credit. It isn’t refundable.

18) Exemptions

a) There are no longer an exemptions

19) Exclusions

a) § 2503: Exclusion, in computing taxable gifts, a per donee exclusion of $10k is granted to every donor

i) §2503a: amounts of gifts made during the calendar year, minus the deduction for charitable and marital

b) gifts of future interests will always be included

i) Heyan: substance over form

c) 6019: gift tax must returned if the exclusion and deductions don’t take care of everything

d) transfers made in satisfaction of a support obligation are not the same

e) amounts paid as tuition or medical care

i) doesn’t need to be a dependant of the donor, and it doesn’t need to be a tax exempt institution

f) gifts of future interests cannot be covered under the annual exclusion

i) exclusion should be available only if the donees can be identified with certainty at the time of the gift

ii) future interests for purpose:

(1) reversions

(2) remainders

(3) and other interest or remainders or estates, whether vested or contingent

(a) even if they know who it is, and even if it can be said with certainty of at least some certainty

(4) term future interest does not refer to the contractual rights that exist in bonds, notes, etc.

(5) : unrestricted right to the immediate use or possession to property is a present interest in property.

(a) Possibility that the exercise of some power might diminish it, is to be disregarded, as long as no power would pass to someone else.

iii) Transfers in trust, go to the beneficiary – so they have to show that some beneficiary has to show some present enjoyment.

(1) Term present interest connotes the right to a substantial present economic benefit

(2) The time not when title vests, but when enjoyment begins

(3) A mandatory accumulation trust won’t count, since even the right to income will only vest later

(a) Discretionary probably not as well

(4) If the trustee has the power to invade corpus for the benefit of the remainderman, but only to the extent that he couldn’t touch it would be considered to be present

(5) Crummy If the amount of income to be received at the time, and the beneficiaries have a power to compel the payment or both on demand, that power makes the gift a future interest

(6) A gift that is incomplete will not be taxable at all, but a gift will be taxable even if it is ineligible, because it is a future interest

iv) § 2053c: Gifts to minors, Crummey trusts

(1) minors usually can’t enjoy in the same way

(a) now dispelled: there was concern that even an outright gift would have to be treated as a future interest because the minor’s legal disability meant that until he was an adult he wouldn’t really own the property

(2) usually made to a custodian – which is regarded as a present interest

(3) Crummey: a crummey withdrawal power given to a minor will make it a present interest so long as there is no impediment to the appointment of a minor to let them possess the thing on the minor’s behalf

(a) Not a future interest, if the income may be used by the minor for the minor before 21, or as the donee may appoint under a general power of appointment

(b) If the requirements are met, than both the income interest and the gift of the corpus will qualify

(c) However, if it is restricted beyond 21, only the property up until 21 will qualify as a present interest

(i) Income interest between 21-25-x will be considered to be future

(4) If neither the statutory tests, or crummy tests are met, it can still satisfy, if income is paid annually, and corpus being distributed at the age 25 – a gift of the present interest with respect to the right to income, and a future interest with respect to the rights to corpus

20) Deductions subtracted from the gross estate to arrive at the taxable estate

a) Estate tax

i) § 2053a: Expenses

(1) Expenses

(a) Funeral expenses as costs of the community

(b) Administration

(c) Claims against the estate – state law can limit

(i) Claims against the estate can be deducted in full if the represent personal debts of decedents

(2) Deaths

(3) Taxes

(a) State and foreign death taxes – § 2053d can deduct or credit

(i) If they deduct it is a waiver of the credit

(ii) Usually the credit will be more advantageous

(4) Losses: To the extent not compensated by insurance

(a) Fire

(b) Storm shipwreck

(5) In a community property state it is only those whose obligation of the decedent, or ½ of the estate

ii) § 2053b: expenses in administration of what is in the gross estate, even if not in the probate estate

(1) for example deduction in defending a lawsuit

iii) § 2053c: limits 2053a,b to claims against the estate are limited shall be limited to the extent that they were bone-fide and for consideration

(1) gifts to charity be okay, and the deduction will only be allowed only to the extent in § 2055, only to the extent in general

(2) tort damages

(3) anything that exceeds the value of property that is subject to claims will be disallowed, unless they have already been paid

iv) § 6430g – can’t take the same deductions on income tax and estate tax return

(1) can take the deduction either in the estate tax return or in the income tax return for the estate. Deductions under 2621a2, and 2622a2 can’t be claimed on any deductions

v) charitable deduction § 2055

(1) estate tax

(a) definition

(i) unit of government

(ii) Religious, etc.

(iii) veterans organization

(b) power of appointment and charitable contribution deductions

(i) power of appointment over property, the property subject to the power is included in their gross estate

(2) Gift tax

(a) Contributions to charities are not treated as taxable gifts

(b) Disallowing charitable gifts of future interests, under § 2055e, and 2522c to prevent abuses by some taxpayers who gave future interest in property to charities but retained a life estate, but whose deductions were overstated

(c) § 2055 disallows deductions of most remainders to charities in estate tax unless a

(i) CRAT – must received a fixed dollar annuity but not less that 5% of the trust corpus at the time for the trust

(ii) Or CRUT – fixed percentage not less than 5% of the trust’s assets

(iii) Or PIF is used, maintained by the donee charity, with remainder to charity

(d) Works of art and copyright are separate properties, and will qualify – if the donee’s use is related to its exempt purpose

21) Policy about deductions

a) Deductions have a wealth variant quality

b) $1k expense. The amount of the tax saving depends upon the applicable rate of tax to the top $1k to the estate

i) smaller net estate pays tax at a different rate

ii) the deduction saves each estate the amount it would pay if it didn’t have the expenses to bear

22) Marital deductions and split gifts

a) Allowed for property that passes to the surviving spouse that passes on the decedent’s death, in the estate tax to his or her surviving spouse

b) Split gifts, lets people elect to allocate ½ of each gift to each spouse

(1) requires that the transfer consist of any interest in property that has been included in the decedent’s gross estate

(2) state requires that the interest not be a terminable interest

(a) § 2056b – limits marital deduction to non-terminable interests (property which qualifies for the deduction will eventually be taxed in the surviving spouse), shouldn’t be allowed if it passes to someone else without taxability. Likewise, property that has been shifted between spouses should be shifted when it leaves that genreation

(i) a terminable interest will avoid taxation, because 2033 doesn’t reach intersts that terminate at death, therefore property disposed of like this shouldn’t be allowed to avoid taxatoin by qualifying for the marital deduction in that estate

(ii) an interest in property won’t qualify for the marital deduction, if it will fail or terminate on the lapse of time, if an interest in the property passes or has passed for less than adequate consideration to a decedent

1. deduction will not be allowed for a terminable interest for his decedent

2. there mere termination of the surviving spouse’s interest alone will not make the bequest ineligible – it is designed to research situation such as a life estate where a non-relegated reainderman might possess the pro

(iii) five exceptions to the question of whether or not the surviving has received a non-deductible terminable interest (interests that expire don’t count

1. common disaster clause in will or within 6 months,

2. life interest in income from property and a general power of appointment with respect to that property

a. marital deduction should be available, since, under 2041 it will be taxable

3. life insurance, endowment or annuity contracts that are payable under specified circumstances

4. qtip

a. oftne in concert with marital deduction trust

i. all the income must be paid to the wife each year (will be taxed)

ii. a residuary trust may be created to pay to the wife all of the income for her maintancnce (this won’t be eligibel for deduction) but will be taxed

b. life estate in qualified terminable interest property will not be treated as a terminable interest, if the decedent’s executor so elects – and its’s entire value qualifies for the marital deduction

c. property with respect to which a property election is made, and passes from a decedent to a spouse, and is entiteld to all the income for life, payable at least annually

i. executor can only appoint to the surviving spouse

d. effects

i. qualifies for deduction in decedent’s estate

ii. interest is taxable in the surviving spouse’s esate, even though they don’t own all of it

iii. value of the entire property is transferred

iv. if the surviving spouse were to make a lifetime transfer of his or her lifetime transfer will be treated as a surving spouse interest

v. an interest that would normally not be taxable, can be made to qualify for that deduction if it is agreed that the underlying principle won’t be taxed in the second spouse

e. this allows a decedent to qualify his or his property to the marital deduction – it isn’t necessity to will it.

f. Can be in trust

g. Doesn’t need to be subject to a testamentary power of appointment, thought it can be

i. If she has a power of appointment, than it will be subject to transfer tax at the date of her death, or when she disposes ot ift

ii. 2059 and 2044

5. life estate granted to a surviving spouse, if the remainder passes to a qualified charity upon the spouse’s death – it is the life estate only that qualifies, the remainder goes to the charity

(iv) bequest in trust will not be deductible, a contingent requirement is that the trust has to be funded

(3) if it is to be paid out of assets not qualified, it must be reduced by the value of ineligible assets

(a) a husband who left his interest in community property to his wife, because the theory of unlimited marital deduction is now a theory of allowing rearrangement between the spouses

(b) the statutory terms interest in property, and passes or has passed from the decedent or the surviving spouse

(4) § 2056 qdots for non-citizens – disallows unless in a qdot, because they might not be taxed

(a) must have one trustee who is a US citizen

ii) To remove the difference, congress attempted to eliminate the estate and gift tax advantages

iii) A testamentary or lifetime gift would automatically be deemed to be a gift of the total gift by each spouse

c) Marital deduction in the gift tax can only be limited to the aggregate of the includible gifts

23) Credits taken against estate taxes

24) For estate tax purposes: excise tax on giving wealth

a) Steps

i) Tax base

(1) inclusion

(2) Deductions

ii) calculation[7]

iii) credits

(1) unified credit (including death and gift taxes)

b) Tax base: at time of death

i) Inclusion

(1) 2033: all property the decedent had an interest in at TOD (instant after death)

(a) must be a beneficial interest

(b) must be transferable upon death by decadent

(c) vested remainders includible

(d) eclectic states rights[8] -- only by state court[9]

(i) Homestead interests[10] are includible as long as the high court of a state does not say that the estate didn’t own them

(ii) If the highests state court doesn’t do anything than the federal government can do what it is

(e) Joint tenancy with right of survivorship (will be included in 2044):

(f) contingent remainders

(i) if a contingent remainder did not fail on decedent’s death, it is includable[11]

(ii) if a contingent remainder conditioned on the survivorship it is not includable[12]

(g) back salary that the employer owed (decedent’s rights have vested)[13]

(h) IRD: Interests and rents due at death

(i) Death benefits that vest at death are includable: Fair market of assets immediately after death[14]

(j) Expectancies are really not included

(k) Shares of stock as investment assets

(l) Business

(i) Unincorporated business: fair market value of assets of the proprietership that the decedent owners[15]

(ii) Giving someone shares, but still have the right to vote are considerd to be the retention of power[16]

(iii) Incorporated: fair market value of the shares of the corporation

(m) Insurance

(i) Joint and survivor annuity – one will continue to get the policy as long as the other lives

(2) § 2035: any gifts within 3 years are brought back into the estate, rather than as a gift. Assumptoin is that a gift is inapplicable, unless otherwsde stated

(a) 2035a: if he hadn’t made the fit, section 2033 would have included it, it is included under 2035a

(i) 36: income

(ii) 37; reversion

(iii) 38: revocable transferes

(iv) 42: life insurance section

1. if you hold any incidence of ownership over a life insurance policy at the TOD, it will be included in the estate

2. if you make 3 premiums on the policy, the full 100k proceeds will be included in the estate

(b) doesn’t include things sales for adequate consideration

(c) Therefore, the apprepriation is taxed to the estate, at a higher value, rather than as a gift as a lower vale

(d) Insurance policies gifted to others

(i) Insurance on the decedent -- Value of policy at date of decedent’s death[17]

(e) Had it been retain, would have enlarged under other provisions[18]

(f) Gift tax paid within 3 years of transfer is included in gross estate[19]

(g) Note, no income fresh start[20]

(h) Revocable transfer, that the decedent had the power of revocation over, is not incldudable in gross estate, but is treated as a gift

(i) Life insurance:

(i) Would be included in the estate if you owned any incidence of it

(ii) But if decedent gives life insurance on themselves to someone, it is only value at its fair market value. So, shifting between gift and estate tax is dramatic under 2035.

(iii) No overlap (2036 only) where the decedeant transfers to a trust, with income for life

(iv) 38 only

(3) Comparing 2036 and 38

(a) If a decedent retained a power to designatre who shall have the income, the value of the entire property is includable under 2036a2, but under 2038 it would only be included only to the value of the alterable income interests

(b) On the other hand, the same result would be reached whichever rule would be allied

(4) 2036: (income and property) value of the interstest in the property included. inclusion with respect to income, (cf may apply if at death, the decedent has no currently effective interest, right or power -- 2038 applies only to interests that are subject to change when the decedent dies)

(a) if enjoyment is retained in the property it is includable under 2036[21]

(i) for his life

(ii) for a period not ascertainable without reference to his death

1. for example entitled to income payable quarterly for his life, but will receive none of the income for the calendar income in which he dies (not always recognized)[22]

2. Transfer by D to W for life, than to D for life, with remainder to children. – period for which D has retained an interest that can’t be determined without reference to his life

(iii) for a period that does not, in fact, end before his death

1. for example: trust with income for 10 years, with remainder to C, and if he dies within 10 years, it comes in

(b) basic rule is that retaining income interest is equivalent to ownership

(c) if they have transferred property, but retained beneficial interest, and control over other’s intersts

(i) corporate shares

1. 2036b: retention of the right to vote directly or indicrectly, are considred to be the retention closely corporate shares (possessing at least 20% of the total voting power of all classes of stock)

2. of a non-closely held corporations don’t seem apply

(d) transfer for bone-fide ownersho pulls it out of 2036

(e) transfers for insufficient consideration of an remainder (annuiting, UIT, or remainder) interest

(i) 2036 could be applicable (2nd) – treated as almost a gift (to non-family members)

1. if not a gift than: the value of the corpus at the time of death – check this (page 11 of note)

2. if an individual makes a transfer in trust, and they retain an interest in the trust

3. 2702 transfer – transfer to family member

(ii) 2036 might not be applicable (3rd) – treated as bone-fide sale

(iii) note: 2702 values the income interest of a familiar transfer at zero

1. and you wouldn’t be making an insufficient transfer to a nonfamily member.

(f) Powers to invade corpus for other party

(i) A mere power to invade corpus (for another party) does not bring the estate under 2036[23], but if one can invade the corpus, for if one can invade the corpus, so that the income interest of one of the benefices is reduced in size, than the ownership will fall under 2038)

(g) Enjoyment retained

(i) Two ways

1. Have you retained a right to to enjoy income from property? – under 2036a1 this is include

a. For example income to life and remainder to C (2036a1)

2. Do you have the power to designate who is going to enjoy the income (2036a2)

a.

(ii) Where the trustee is required to pay income or corpus under certain circumstances, whether or not those circumstances have occurred

(iii) Trustee is required to pay income or corpus to discharge the decedent’s debts or the child support obligations

(iv) Trustee is required to use the income or corpus to pay premiums on life insurance owned by the decedent

(v) Examples of no retained enjoyment

1. Trustee has absolute discretion on whether or not to pay income to the decedent, and does not, provided that there is no pre-arrangement

2. Trustee is required to pay amounts to someone, there is no right to direct the use of the money for support purposes

(h) Power to designate (really a 2036 power), and unless the power to design changes the value of one of the beneficiary’s interest (2038 power) it won’t be includable

(i) If it relates in any way to principle than 2038 applies

(i) Power to accumulate /not accumulate income is really a designation issue[24]

(i) Retention of a power to accumulate is a power to designate[25]

(ii) Some people say that a power to accumulate is really a power to direct it to someone else

(j) Unrestricted power to restrict the power to change the trustee is not 2036 power unless you have to appoint yourself[26][27]

(i) If a court removes someone as trustee than 2036a2 applies, but if they are replaced with an independent trustee, than it won’t apply[28]

(k) If a trustee is subordinate, that it will apply – the trustee should be totally independent

(l) If a trustee’s powers are determined by ascertainable standards than 2036 doesn’t apply[29]

(i) Non-adverse parties are not realted, or employed

(m) If it is a non-adverse party, can still be excluded if for ascertainable standards[30]

(n) Giving someone shares, but still have the right to vote are considered to be the retention of power[31]

(i)

(o)

(p) Controlled corporation

(i) If D or D’s relatives own over 20% of a controlled corporation

(ii) Question is what percentage of the stocks does he have

(q) 318

(i) only voting stock matters: inclusion if right to vote the stock transferred was retained

(ii) control is defined as ownership of 20% or more of the voting stock[32]

1. only needs to control within 3 years of death

2. voting power is defined as power to elect directors[33]

(iii) any stock owned by trusts or relatives is attributed to the decedent

1. releatives

2. trusts

3. if the decedent has the power to obtain the right to vote, he has retained the vote for purposes of 2036

(r) 318 inclusion of value of income from transferred stock in controlled corporation

(i) Control of cooperation is defined as after the transfer and within 3 years of his death, the descend t had the right (alone or in junction with any1 else) to vote 20% or more of the total voting stock, or the decedent or his family owned 20% or more of the total voting stock.

1. He has retained enjoyment only of the voting stock

2. The fact that a relative of the decedent is trustree of a trust, it shall not require that a trustee has retained that stock

3. If the decedent has the power to obtain a right to vote, he has retained a right to vote[34]

a. Right to vote means the power to vote that is either alone or with other people[35]

(ii) If a trustee happens to own 20% of the stock, and the trust owns 5%, than it is not includable – check this

(iii) The cessation or relinquishment of the right to vote the transfer stock is transfer of property for purposes of 2035

(iv) Doesn’t matter how much is in a trust that D doesn’t control, it matters how much stock D owns (for example treating the corporation like a trust)

(v) Additional purchases don’t count as ownership, unless party who sold them the stock is a family member

1. decedent will be treated as owning a closely held corporation, if his decedants own a share in it

(vi) if donor doesn’t retrain voting right

(vii) division of voting rights and ownership

1. no inclusion in GE if the transferred stock has not the voting rights

(5) 2037: transfers taking effect at death (reversionary interests)

(a) transfers of remainders in which the decedent has a reversionary interest in the property

(b) four criteria

(i) transfer by decedent

(ii) current possession only by surviving decedent

(iii) retained reversionary interest

(iv) value of erversionary interest has to be greater than 5% of the whole property

(c) reversion by operation of law does count: [36]

(d) if there is a general power of appointment than 2037 doesn’t apply (2041 does apply)

(e) can avoid by setting term of years that is reasonable

(f) reversionary interest does fall under 2033 if the contingent remainder doesn’t fails at death

(i) if it fails at death, it isn’t included

(ii) if reversionary interest is cut off at death, than 2033 doesn’t apply

(g) if there is a reasonable term of years, 2037 doesn’t apply (another 2036 does)

(h) if possession of the property could hav ebeen obtainable though surviving the decedent or something else, than not includable

(i) if happens to fall into the three period, there may be a gross-up of the gift tax

(j) once 2037 does apply, the reversionary interest will apply at the tod for the entire amount

(6) 2038 (revokable actuarial transfers) will include property and actuarial value of rights to enjoy the income:

(a) 2038 powers are upon the value of any property that has transferred during his lifetime, which could be revoked (is “subject to any change through the exercise of a power by the decedent”)[37]

(i) Whether there was a power: if the property was transferred by the decedent during their lifetime, but the decedent retained an interest in it, than 2038 will take effect.

1. The powers to revoke the transfer must be revocable at death

2. Powers that are subject to contingencies do not count[38]

a. Contingency must not be in the control of the decedent[39]

b. Contingency did not occur[40][41]

c. Factual or legal disability to exercise the power does not make the power cease to exist (for example if someone is incompetent to exercise the power, he still has power)[42]

i. But, powers subject to judicial restraint, are not taxable[43]

3. If the power arises by operation of law, than it is included as a power undre 2038[44]. For example state statue gives H a right the revoke a transfer to W.

(ii) What the power was - ministerial powers don’t count (to alter, amend, revoke or terminate) – the power must affect enjoyment

1. But, on the other hand, ministerial conditions where the contingency is subject to only a ministerial condition such as the giving of notice or expiration of time.

a. Note: if a time period is involve, the amount included in the estate is discounted[45]

b. Power to allocate receipts and disbursements will effect the be consider to be managerial, not ministerial

c. Power subject to an ascertainable standard is not includable[46] but power that are vague are[47]

i. Note: if there is a fixed, external standard by which such, that could be used by the Decedent/transferor to compel distrobutions it will count

2. Powers to alter or amend, or allocate

a. Powers to alter and amend are treated the same

i. Power to add new beneficiaries, or invade corpus for the benefit of an income beneficiaries or another

ii. Power to alter the interest of beneficiaries will bring it in, even it it could be exercised only by will![48]

iii. Power to accumulate is not taxable[49]

b. Power to allocate capital gains either to capital gains or income, means that the decedent has retained the power[50]

c. Acceleration of enjoyment is a change

3. Power to accumulate is not taxable[51]

4. Power to revoke is a power

a. Power to revoke with nominal consideration (for example borrow or transfer the trust corpus) is a power to revoke[52]

5. Power to terminate

a. If D can either terminate or effect the time and manner of the trust property it is enough to be included[53]

6. Transfers to minors under UTMA

a. Is includable, if the D dies before the minor attains minor attain majority. Custodian may apply income or principle for the minor’s benefit, for the support or maintenance[54][55] -- can be gotten around by naming someone else custodian, will not be involved if a 3rd party is involved and 2036 will not be invoked

7. Power must be exercisable either by decedent or by the decedent and another

a. Joint powers

i. Doesn’t matter if someone who holds the power has an adverse interest[56]

ii. Adverse interests might be an a requirement of the concurrence of someone who stands to lose their interest in the trust

b. Solely by another

i. If a power to alienate is exercisable solely by another it doesn’t count at all

c. Power to replace trustee is consider to be a power to alienate[57]

d. Power to compel the use of the truesee’s discretion is considred to be a power

e. Power to affect the enjoyment of others is sufficient[58]

(iii) Effect of a release (within 3 years to D’s death)

1. Relinquishment of a power within 3 years of death, means that they still have the power[59] -- [60][61]

a. 2035 – 3 year rule: if relinquished during the 3 year period before the death, than it is include[62]

2. Not under 2035d2 (no longer here): If the decedent had a revocable trust, and than allocated, irrevocable portions of the trust, this is a withdrawal followed by a gift.[63] (will be treated as a gift and into the beneficiary’s estate)

(iv) The amount of the power (taxable): value of the interest that is subject to taxable power

1. If the power only effect’s a particular beneficiary’s interest, than only the value of that taxable interest is in the transferor’s estate[64]

a. To allocate income between beneficiaries, doesn’t change the amount that is includable in the estate, but 2036a2 will get this because the power to designate who shall possess or enjoy

2. Important to realize whether the income or the corpus is within the control of the Decedent

3. If the decedent has the power to direction invasion of corpus and distribution to the owner of the remainder, the entire value of the trust property is included because the other beneficiaries are included[65]

4. The only time that 2038 applies without 2036

a. If Decedent’s power effects only the remainder, and not the income interest, than 2038 is in exclusive control. 2036a2 powers don’t include a power of the transfer of property itself, which don’t effect the value of the income of the decedent’s life[66]

b. If the decedent doesn’t retain a power in connection with a lifetime transfer. D with income to A for life, with

(b) Relationships that 2038 has with other sections

(i) 2036a2

1. 2036 won’t affect transfers made before 1931, and 2038 effects transfers regardless of their date

2. 2038 doesn’t care about the source of the power, whereas 2036 wants the power to be retained

3. 2038 applies even though the power will only affect enjoyment of intersts after decedent’s death

a. 2036 is limited to only income or property interest that will be affected during the decedean’t lifetime

4. 2036, unlike 2038 will not operate if the power is subject to a contingency beyond their control

5. 2036, unlike 2038 taxes the entire property to which the retained interest or power relates. 2036, on the other hand taxes specific interests

(ii) interaction with 2035 – 3 year rule: if relinquished during the 3 year period before the death, than it is include[67]

(i) Election If the estate of a decedent includes a remainder interest[68] the executor can pay that tax 6 months after the termination of the precedent interest[69]

1. Policy: property is not available to pay the tax

2. IRS can extend this length of time 3 years by a showing of reasonable cause[70]

(ii) Each probability of each remainder must sum to 100% -- sum of their interests equal to the value of their property is equal to 100[71]

1. Need the interest rate and the terms

(d) Smith v. Seanaucy: Gift tax is not defeated if the interests are complex. All interests must add up to 100%

(e) Power that would pass, and require the giving of notice are included[72] --

(i) Any power to alter or amend, or alter – than it is included –

1. power

a. All powers include powers that could be exercised to benefit anyone, not just the decedent[73]

b. Power to terminate is a power[74]

i. Might not bring the entire corpus into estate, because only includes interests that are subject to change as a result of the power

ii. If he would’t have had it anyway, it doesn’t matter[75]

c. Power to name more beneficiaries is a power

2. It is not a power,

a. If the power is exererciseable only with the consent of the parties having an interest (vested or contingent)[76]

b. But, if more children are added to the will it is not a power[77] (decedent’s ability to have more children, add them to the will, is not a power to change the beneficial interest)

c. Power to invest is a power – if there is a possibility to gamble, it is a power[78]

d. Restrained power is not a power[79]

(ii) must be demonstrable, not speculative[80][81]

(iii) If the power is given to other, under which the decedent has no control, than it is not included[82]

(iv) Reservation of a power to alter:: If the decedent has the power to revoke a transfer, than it is included in his estate, if he had power when he died[83] -- but if it is governed by an objective standard it isn’t a power to alter[84]

(f) Revocable trusts are usually not included[85]

(i) A right to accumulate interest in a corpus,

(ii) Revocable living trusts

(7) 2039: annuities (not life insurance): the value of an annuity of an annuity or other payment receivable by any beneficiary by reason of surviving the descend under any form of K or agreement)[86]

2. not taxable under 2039 because not taxable to a surviving beneficiary

3. if no refund is owned, nothing is included

(iv) refund annuity payable to another, if the decedent has the right to change is a 2038 revocable interest

(v) Joint survivor or self annuities is defined as payments are made to the purchaser and another joint during their lives, with benefits continuing in favor of the survivor during life. Under a self and survivor annuity plan, the primary annuitant receives payments during life, and after death the payments continue to a designated beneficiary

(vi) Does not include a situation where the decedent or the beneficiaries have a mere expectancy (rare)

(b) Inclusion: the estate tax is imposed upon that value of the survivor’s benefit that is proportionate to contribution made by the decent[89] but any contributions made by the employer are treated as having been made by the decedent

(i) Defining the decedent’s interest[90]

1. If the decedent alone, or with another person[91]

2. Possessed the right to receive, or received the benefit[92]

a. If the decedent was entitled to receive a pension upon retirement, with a death benefit payable to a designated survivor, and he died before retirement, the survivor’s benefits would be includible under § 2039

b. If the decedent’s right to receive future payments is subject to a remote contingency[93]

c. If the decedent has received everything payable under the contract, and there is no more to get, it is not includible[94]

3. For his life or for any period not ascertainable without reference to his death[95]

4. Or for a period that does in not, in fact end with his death[96]

(ii) Separate contracts don’t preclude taxation. If two annuities (one to employer and one to designated beneficiary) are created at different times, (for example by employer) than both are included in the estate (assuming qualified plans)[97][98]

1. If a an employer consecutively sets up three plans, they are considered to be one

2. Life insurance can fall under a package, but only under the 5th circuit[99]

(iii) if there was a right to retirement benefits, that right may be viewed as a part of the annuity contract as a part of the annuity contract under 2039[100]

(c) Control and definition of contract

(i) If the employer has complete discretion, there is no contract[101]

(ii) Survivor’s benefit’s don’t count

(d) Must be “payable to the decedent” in that the decedent was actually receiving payments without regard to whether he could require their continuation[102]

(i) If there are multiple criteria – 2039 doesn’t require that the beneficiary’s interest be conditioned solely on surviving the decedent

1. We look to which criteria was actually fulfilled if there were multiple criteria, so if, for example there was an alternative criteria (such as the beneficiary reaching age 70, and age 70 is reached, than it is not includible)

(e) Excluded

(i) salary is excluded if it comes after death[103] (but retirement benefits disguised as salary are not includible)

(ii) “right to receive’ if the payments are at the time of the decedent’s death enforceable, even though the decedent may be dead at the time scheduled for payment[104]

(iii) doesn’t include life insurance policies on the life of the decedent[105]

1. whether a life insurance risk exists at the date of the decedent’s death is defined as when is when under the contract (premiums paid plus earnings allocated to the cash value of the contract) is less than the proceeds that become payable to the beneficiaries upon the death of the primary annuitant (insured)[106] -- all or nothing – if the difference between the reserve calue and the amount of the proceeds is even one cent, than it is life insurance

(iv) salary payments are not included

(f) amount included

(i) size of what is payable to the survivor, minus what the decedent paid (see fn)[107]

(8) 2040: joint interest

(a) joint interests

(i) revocable joint interests don’t count

(ii) if the decedent’s interest and that of the other co-owners were acquired gratuitously from others, a co-owners estate is taxed at death on his ratable share of the property, even though his interest expires with him[108]

1. gifted property is treated as if co-tennant had contrinbuted an equal amount

2. if jtros acquired, the amount is the value of the property divided by the # of tenants

a.

(iii) if the decedent created the interests in other people, the entire value of the property is taxed in his estate[109] -- exception: if it is husband and wife it is ½ [110]

1. qualified joint interest is defined as[111]

a. property title

i. TIE

ii. Joint tenancy with right of survivorship

b. H&w are only tennants

2. Spouse who is not a citizen doesn’t count[112]

(iv) if the decedent’s interest was acquire gratuitous from another co-owner, his estate is not taxed at all at death[113]

1. if there is less than full consideration for money or money’s worth, it only the part of the property that is proportionate (imputing the value of the share basd on the sham value)

(v) proportionate share: if the wealth of the decedent and their co-owner went into the acquisition of the property, congress attributes to the decedent, a portion of the property commensurate with what he paid[114] -- IRS looks at proportionate of shares you bought, not what you legally own

1. if the decedent gave nothing, nothing will be included[115] (even if he gave him this amount)

2. if this was really a gift, there can be a credit towards gift tax paid

(b) three categories (state law)

(i) TIE

(ii) Joint tenancy with right of survivorship (will be included in 2040): fractional dividing by the number of joint tenants[116]

1. Joint tenancy with right of survivorship is defined as the owner can pass it

(9) 2041: power of appointment are generally included authority created or reserved (has to be a power that is donated) by a person having property subject to his disposal enabling the donee to designate within such limits as may be prescribed that the donor, the appointees of the property or the shares, or the manner in which such property shall be received[118]. Power of appointment are powers that which are exercisable in favor of the decedent, his estate, his creditor, or the creditors of the estate.[119] (retained power under 2036)

(a) exercise of a power of appointment by will are included[120](if the donee through the will is dictating who gets to do what, or give it to his creditors)

(b) Exclusions from general power of appointment[121] (power of appointment are included in the estate tax)

(i) Mere powers of management don’t count

(ii) Power which is exercisable for ascertainable standard[122]

(iii) Power which is exercisable under with the extent of the creator of the appointed

(iv) Power which is exercisable only with the consent of an adverse party

1. For example someone who stands to receive less because the other hold of the property would receive more

(v) Powers to a limited class of person not included the decedent, his creditors, his estate, or the creditors of his estate are not a general power of appointment

1. If the hold can use the power of appointment to discharge debts, it is included

2. If the hold can use the power of appointment to support those who he has to support it is include[123] (for example minors) – even if it an ascertainable standard

(vi) special power of appointment are excluded

1. 5 and 5 powers: if the power that lapsed was such that during any calendar year the exercise was limited to $5k or 5% (whichever is greater), noncumulative, of the value of the property out of which the exercise of the power could have been satisfied, whichever is greater[124]. Note, if there is a power to invade corpus greater than 5 or 5, it will be included in the estate, even if lapsed.

a. If the decedent didn’t exercise before death, it would included (for that year) to the full extent of that year’s power in his gross estate[125] -- this is often avoided by making the power of appointment only excisable on certain days during the year.

b. Regulations require the valuation of the percentage of the trust valued at the date of the lapse of the power that could have been appointed under the lapse power in excess of the allowed $5k or 5% exemptions[126]

c. If someone dies, with a limited power of appointment of a trust corpus that is above $5k/5% than the includible portion is defined as:

d. Steps to determining

i. Determine power to invade corpus (from trust conditions)

ii. What portion of the power to invade corpus is above the 5/5 rule?

iii. Multiple step 2 by size of corpus

iv. Add to power to withdraw (from step 1)

2. Crummy power of appointment ( bypass trusts)

a. Holder of the power must have some interest in the trust, such as having a few days to extract the property subject to the power from the trust corpus. He doesn’t even need a beneficial interest in the trust triggered by the annual exclusion.

i. Amount of present interests generated by the power, is limited to the lesser of the amount of the transfer, or the amount of the annual exclusion. If there are several beneficiaries, than each beneficiary can claim a qualified amount as an excludable present interest

ii. Ability to exercise – service said it has to be non-illusory

(c) Powers exercisable with concurrence are included[127]

(i) If the coholder of the power is the donor or a person with subsantial interest in the donor, than it is excluded[128]

1. permissible appointees who possess no other interest in the property are not adverse parties—

a. note: people are taxable only to the fraction of the number of permissible appointees (including the decedent). (for example if the decedent has an interest as does the co-holder than it is divided by two)

2. a person who after the death of the decedent would be able to exercise power of appointment in his own favor is an adverse party[129]

(ii) If the coholder of the power has nothing to do with the done than it will be included[130]

(d) Renunciation of power of appointment

(i) A categorical release is considered to be a release[131]

(e) doesn’t matter if the decedent is legally or physically incapable of exercising the power[132]

(f) If the power is exercisable, in favor of the decedent, his estate, his creditors, or the creditors of his estate, than it is includible in his estate.

(i) Interpretation of this is under local law, but not necessarily under local adjudication[133]

(ii) Doesn’t matter the capacity in which the power is exercisable

(iii) If the decedent has the authority to compel exercise of a power it is exercisable

(iv) Contingent power of appointment : If the power of appointment is subject to a contingency beyond the decedent’s control, it is not subject to a general power of appointment [134]

(g) Disclaimers by those who were given the general must be done within 9 months of the death of the decedent[135]

(i) Must be in writing[136]

(ii) Must be received by donor within 9 months or 9 months from the day on which the donee attains age 21[137]

(iii) Donee must not have accepted the interest or any of its benefits[138]

(iv) Must not have accepted the interest or its benefits prior to the disclaimer[139]

(v) Must pass to a person (except for the spouse) other than the person making the disclaimer[140] as a result of the refusal to accept the property

1. Surviving spouse can disclaim an interest in the property, and it won’t be in her estate

2. If the wife retains the right to decide who gets to retain the property, and it isn’t subject to estate or gift tax, than the spouse will have it included in their estate, unless it is limited by an ascertainable standard[141]

(vi) If there is a refusal to accept the power of appointment, the interest must pass to a person other than the disclaimant without any direction on the part of the disclaimant

(h) If there is a Remainder to decedent’s estate

(i) Two views

1. Included (probably correct): the existence of a power freely to direct the transfer of property and not the source of the power that is critical for estate tax purposes. Hence, if a decedent elected to place the residuum of the insurance proceeds in a position which the decent could appoint without restriction, he created a general power of appointment [142] -- doesn’t matter that it isn’t a testamentary power, it is a power

2. Excluded: the power that the deceased has arose via state law[143]

(10)2042: insurance proceeds that are receivable by executor.

(a) Define life insurance

(i) Whether the economic risk of death must be shifted or distributed[144]

(ii) When payment of death benefits cease to be insurance, when the terminal reserve value equals the death benefit, because by that time, the insurer has saled away enough proceeds to pay the insured without incurring a loss[145]

(iii) Exclusion

1. Life insurance annuity packages

2. Endowment policies or retirement income policies, if they matured

3. If the insured transfers within three years of death, an incident of onershp, it will be taxed, because of 2035 powers[146]

a. proportionate exclusion based on the premiums paid by donor.[147] If the insured assigns the policy to another within 3 years of death and the donee thereafter pays all the premiums, only that part of the proceeds proportionate to the premiums paid by the insured prior to the assignment is includible. Since the premiums are required to keep the face value of the contract in tact.

(b) Included “if the beneficiary is D’s estate, than it is taxable, otherwise, if not it is only taxable if D incidents of ownership at his death

(i) Incidents of ownership

1. Possession of incidents of ownership (along or in conjunction)

a. Joint ownership is included[148]

b. Disability from exercising incidents of ownership

i. Doesn’t matter if unable[149]

ii. Doesn’t matter if legally disabled[150]

iii. Note if the beneficiary had been irrevocably designated, the courts have held that there is no residual economic interest in the policy[151][152]

2. If the decedent pay the premiums, but he doesn’t possess incidents of ownership, his payment won’t result in inclusion

a. proportionate exclusion based on the premiums paid by donor.[153] If the insured assigns the policy to another within 3 years of death and the donee thereafter pays all the premiums, only that part of the proceeds proportionate to the premiums paid by the insured prior to the assignment is includible. Since the premiums are required to keep the face value of the contract in tact.

3. Retention of the following rights is consider to be an incident of ownership[154]

a. Right to change beneficiary[155]

b. Right to surrender policy for money or to cancel[156]

c. Right to borrow against policy[157]

d. Right to pledge policy as collateral[158]

e. Right to assign policy[159]

f. Right to prevent cancellation of policy owned by donor by purchasing policy for cash value[160]

g. If the employee, in an employer group insurance plan quite the job, quitting the job, and affecting the cancellation is not an incident of ownership[161]

h. Reversionary interest, by which the insured (or executor) can regain one or more of the above rights, in the event that the beneficiary should die before the insured[162][163]

i. It is reversionary, only of the reversionary interest exceeds 5% of the value of the policy immediately before death. [164]

i. Corporate ownership

i. If the insured owns more than 50% of the corporation that owns the insurance policy, than he is deemed to be the owner[165]

j. Exclusions

i. Rights can be permanently assigned away, thereby removing the exposure to the estate tax[166]

4. If the insured transfers within three years of death, an incident of onershp, it will be taxed, because of 2035 powers[167]

(c) Taxation of life insurance payable to estate are fully taxable[168]

(i) If they are payable to someone who has to pay the debts of the estate, they are fully taxable[169]

(ii) Note: in some states, life insurance goes directly to beneficiaries, not the estate[170]

(d) Taxation of proceeds that go to someone else provided that the decedent possessed none of the above incidents of ownership

(e) Amount includible – full amount receivable[171]

(i) If they have the option of receiving a lump sum, that is the full amount includible[172]

(ii) If the proceeds are payable in installments, npv is value includible[173]

1. If the periodic payments are payments of interest and not an annuity, the face amount of the policy is included[174]

(iii)Payment of premiums of donee

1. proportionate exclusion based on the premiums paid by donor.[175] If the insured assigns the policy to another within 3 years of death and the donee thereafter pays all the premiums, only that part of the proceeds proportionate to the premiums paid by the insured prior to the assignment is includible. Since the premiums are required to keep the face value of the contract in tact.

ii) Exclusion – § 2010 and 2505 $675,000 for year 2000[176]

iii) Deductions § 2055, 2056

(1) § 2055, charitable deduction, for all property on death by the decedent for public religious, education, etc. (must be qualified charity)[177]

(a) must be qualified charity

(i) split interest gifts: charitable deduction is generally limited to the value of the interest actually transferred to the charity[178]

(ii) forms of gifts of split interest-- must be in the these three

1. annuity trust: a trust in which the trustee is required to distribute annually to the noncharitable beneficiary a specified sum that is at least five percent of the value of the trust assets[179] -- [180] -- [181]

a. no deduction is allowed if another, noncharitable remainder precedes the charitable remainder, or the income interest is for a term of years (rather than a life estate) and the term exceeds 20 years.[182]

b. Disqualified if can be invaded for private use[183]

2. unittrust: trustee must distribute annually a sum that is either a fixed percentage (at least 5%) of the trust estate (determined annually) or the entire trust income, whichever is less[184][185]

a. no deduction is allowed if another, noncharitable remainder precedes the charitable remainder, or the income interest is for a term of years (rather than a life estate) and the term exceeds 20 years.[186]

b. Disqualified if can be invaded for private use[187]

3. pooled income fund: a trust where a public charity is trustee, and several donor’s contribute property to the trust, each reserving for himself a life estate in proportion share of the combined property The public charity must have an irrevocable remainder[188] - [189]

5. remainder interest in a personal residence or a farm following a legal life estate[191]

(b) deathtime

(i) power of appointment to charity deductible

1. if there is a power of appointment that is granted to a charity that would be taxed under § 2041, it would be taxed as well (for example D grants a power of appointment to a charity which isn’t exempted under 2041)

2. he is entitled to a charitable deduction for amount actually received by the charity as a result of the exercise or failure to exercise, release or lapse of the power[192]

3. transfers to spouse, if the spouse is over 80 years old at the time of the decedent’s death, who is entitled for life to all the income from the property, who has a testamentary power of appointment, exercisable in favor of charities that qualify under 2055, which actually exercise the power in favor of such organization[193]

(ii) limits on deductible amount

1. the deduction can’t exceed the value of the transferred property that is included in the decedent’s gross estate[194]

2. if the property transferred to the charity is burden with an obligation to pay any death taxes imposed upon the decedent’s estate, the charitable education will be reduced by the amount of such taxes, since the outstanding obligation also reduces the amount that actually passes to charity[195]

(c) lifetime transfers

(i) if the transfers would have been taxable in the gross estate, they can be deducted

(ii) power of appointment to charity deductible

1. if there is a power of appointment that is granted to a charity that would be taxed under § 2041, it would be taxed as well (for example D grants a power of appointment to a charity which isn’t exempted under 2041)

(2) § 2056 marital deduction: all property passing to the spouse is deductible deduction for property that passes to surviving spouse on the decedent’s death, for all property passing to the spouse (can be intervivos). Doesn’t have to be spouse at time of transfer, just at time of death[196][197]

(a) marital deudction now accepted for equalization clauses[198] because they said that the spouses’s interest could be determined

(b) simultaneous death: will follow uniform simultaneous death act

(c) the deduction follows what actually passes (what the spouse elects to do at a will, or what will is probated or agreed upon)

1. lifetime transfers that create a pass are included (such as reserved life estates, joint interest) do pass[200]

(ii) property that is encumbered by a mortgage, will be reduced by the value of that encumbrance[201]

1. if the property is not received unconditionally, than only the excess of the value of the property received under the will over what the spouse was require to relinquish is deductible[202]

(iii) marital deduction trust (bypass): a transfer in which the surviving spouse is to receive all the ince form the property during her life (or all the income from a specific portion of the property) and is tranged an unqualified power to appoint the property, to to herself or her estate will qualify for the marital deduction[203] (can be restricted to a dollar amount)

1. spouse must receive all property payable at least annually,

a. if the trustee has any powers to accumulate, they must be subordinated to the spouse’s power to demand

2. if the spouse is entitled to a portion of the trust, a deduction will be allowed under the specific portion rule, however the amount of the deduction will be restricted to the proportionate value of the property transferred on trust[204]

a. if the spouse has a power to appoint, and is entitled to a portion of it, the deduction only covers the lower amount of the two

3. spouse must have the power to appoint the property to herself or her estate, and this power must be exercisable by the survivor alone and in all events[205]

a. power doesn’t need to be exercisable by life and by will, just by life or by will

4. powers to consume are not enough[206]

5. powers must be exercisable by the surviving spouse alone (not with anyone), not subject to contingent events, and not in no power must be in a third party that is is “in opposition” to that of the surviving spouse”)[207]

a. for example: where H gives W a life interest in income and a general testamentary power of appointment , the marital deduction is allowed even though a third party can appoint the property after W’s death in the event that W has not exercised her power

(iv) if the surviving spouse is not a citizens (doesn’t matter what the dead spouse was) money must pass to her though a qualified domestic trust[208][209]

(v) value of the interest (deduction) must be reduced by any federal estate or other death taxes payable by the spouse or payable out of the interest passing to her[210] -- could become circular xx

(vi) support allowances (criteria determined at date of death, not probate ruling)[211]

1. if state law required a fixed amount to spouse, this amount will qualify for the deduction – but, if the probate orders these benefits after death, than no allowance is granted[212]

(e) marital deduction not authorized:

(i) four criteria for disallowance (must all coexist)

1. pecuniary bequest: specific amount or under formula

2. distribution in kind: executor is authorized to distribute assets in kind to satisfy the pecuniary bequest

i. Purchase of a annuity for life by the executor is not a deducible interest

ii. No maritial deduction, where the decedent, order the executor to covert the spouse’s interest into a terminable one[222]

iii. Contingent gifts, (for example things that will terminate upon her death or remarriage)[223]

c. Can’t get around it by requiring contrually the spouse to pass interest or create will to third parties

d. Passes required by law (dower) do not qualify for the deduction[224]

e. if a state allowance is for an indefinite period or is depends upon the spouse sirviing throughout the period of allowance, it is a terminable interest and doesn’t qualify

2. if the estate of decedent contains a terminable interest, itself, the marital deduction is reduced by this amount[225]

(xiii) Exceptions to non-deductible terminable interest rule: Q-TIP[226]: qualified terminable interest property is defined as property (or an interest therein) that passes from the decedent in which the surviving spouse has a qualifying income interest for life, and with respect to which the descent’s executor makes an election to have the property qualify as a q-tip interest[227]

1. Charitable q-tips

a. If q-tip is passed to a spouse and a charity, as long as the spouse is the only non-charitable interest, than one can the marital deduction. Spouse’s interest must be for life or for a term of less than 20 years.[228]

i. Deduction of the full value of the property transfer

ii. Marital deduction

iii. Charitable deduction

b. Testamentary trust – income to surviving spouse for life, remainder to charity, with direction to the executor to elect to qualify property held in the trust as a q-tip

2. Surviving spouse must have a right to all the income from the property for the spouse’s life, payable annually or more frequently[229][230]

3. Must be income from a all the property or from a specific portion, not a ascertainable standard

4. No one can have the power to appoint any property for the spouse’s lifetime except for the spouse’s benefit[231]

5. Someone (including the surviving spouse) can be granted a power of appointment to be exercisable at the surviving spouse’s death[232]

6. Election: Marital deduction is allowed if the passing is contingent upon an election by the executor[233].

a. Entire property will be included in the surviving spouse’s estate, not just the income interest[234]

b. Partial election: executor can qualify a portion of the qtip property, especially in the form of a formula like ‘so much of the property as may be necessary to reduce the federal estate tax liable to zero, after taking into account all other allowable deduction and credits”

7. Stub income (income that “accidentally” due to additional ) goes to QTIP spouse does not disqualify the estate [235] -- will be included, but won’t disqualify

8. No POWER OF Appointments while the surviving spouses is alive damnit! away from surviving spouse by anyone (including the surviving spouse)

a. If there is a power of appointment after the spouse is dead, it is okay[236]

9. 3rd person invasion

a. no restriction for anyone having a power to invade the corpus during the spouse’s lifetime, as long as it was for her benefit[237]

b. prohibits an invasion of the corpus for anyone other than the surviving spouse

c. if the spouse invades corpus, the surviving spouse can be legally bound to give that money to a 3rd party, without adequate consideration, than it is invalid[238] --

10. if the suriving spouse makes a lifetime transfer of her interested in the qtip property, the value of the property, will be treated as a taxable gift

11. upon the death of the surviving spouse, the qtip property will be included in her gross estate[239]

(xiv) if there is an insurance or annuity contract, where there is a life estate with power of appointment are satisfied, this is not interest – if the spouse has a right to all intrest or intsllment payments with respect to insruacnes, this is an exception[240], but if the balance is a fixed number of payment, with a proportion payable to another, the entire amount is not deductible

c) calculation[241]

i) rate schedule[242] -- look up

ii) shortcut is that tax on 1m is $345,800[243]

(1) 750-1m, rate is 248k, excess is 97,500 = 345,800

d) minus credits

i) unified credit (including death and gift taxes), like a checking account

ii) Credit amount on page 84

25) For gift tax purposes – completed and full and adequate consideration for less than money and money’s worth[244]

a) Annual exclusion:

i) Eduction, medical (has to be paid directly)

(1) Note; if there is an obligation under local law to pay, there is no gift

ii) $10k/donee per donor

(1) split gifts: spouses can treat gifts made to 3rd parties as though each spouse had transferred ½ of the property, without regard to who the actual transferor was[245]

(2) gifts made by a trust are taxable to the owners of the trusts

(3) annual exclusion doesn’t apply to future interest

(4) future interests don’t count toward 10k exclusion

(a) nonascertainable present intersts don’t count to the exclusion

(i) discretionary powers don’t count

(ii) conditional gifts

(iii) unproductive property

(b) future intersts

(i) reversion

(ii) remainder

(iii) possible reverter

(iv) forward starting life estates

(v) distribution of corpus upon the termination of trust is a future interst

(c) non-future intests

(i) income from a trust is a present interest, so long as it is a vested right[246]

(ii) crummy powers

1. Holder of the power must have some interest in the trust, such as having a few days to extract the property subject to the power from the trust corpus. He doesn’t even need a beneficial interest in the trust triggered by the annual exclusion.

a. Amount of present interests generated by the power, is limited to the lesser of the amount of the transfer, or the amount of the annual exclusion. If there are several beneficiaries, than each beneficiary can claim a qualified amount as an excludable present interest

2. Ability to exercise – service said it has to be non-illusory

(5) Minor’s trusts

(a) Can make gift to custodian

(b) Minor’s trust can be deemed to be a present interest, if at all times the trust is distributed by a trustee for the minor’s benefit[247] -- but the residuum of the corpus must be distributed at age 21[248] -- must be payable to the minor’s estate (or he can appoint under a general POWER OF APPOINTMENT under 2513c

(i) Corpus can continue to accumulate after minor reaches 21, ex-minor must have the right to require distribution

iii) defining gift (donative intent not relevant)

(1) donor

(a) not trustees

(b) entities can make gifts, and is taxable to their beneficial powers[249]

(c) indirect gifts: gifts made on the condition that the gift be transferred to a 3rd party are handled as direct gifts to the third party[250]

(2) donee

(a) transfers to trusts (or corporations) are treated as gifts to the trust’s beneficiaries[251]

(b) donee’s do not need to be ascertained

(3) subject matter

(a) below market loans

(i) loans that

(b) equitable

(i) a transfer by a trust beneficiary of her interest in the trust isa taxable gift of the interest

(c) future

(i) gifts of future interest as well as present interest may be the subject matter of taxable gifts

(d) concurrent interests in property: when property is acquired and title is taken in a form of cotenancy, there is a taxable gift to the extent that the value of the interest acquire by one co-tenant exceeds what that party contributed to the purchase price

(i) severing a joint tenancy is not a gift if they both receive a proportionate share

(ii) creation joint tenancies might not be gifts

1. joint tenancy in real property created by spouses is not a taxable gift[252]

(e) bank accounts are incomplete gifts

(f) contingent

(i) valued actuarially

(ii) can’t be revocable

(iii) gifts that have a conditions “void of subject to gift tax” have that condition voided as contrary to public policy

(g) types of property that are subject

(i) most thing

(ii) foreign real estate

(iii) bond

(iv) gifts of services not subject to gift tax[253]

(v) qtip

1. if the hold of qtip property disposes of the interest during his lifetime, the spose will be treat as having made a gift of the full value of the property to which the interest relates, not just the life interest itself[254]

(vi) interest free loans are considered to be taxable gifts

1. demand loans are still taxable gifts

2. below maker rate loans are calculated based on the difference between the loan and the applicable federal rate[255]

(vii) springs lapsing rights

1. if the donor donates a gift which requires the exercise by the donee, this is considered to be a gift

2. (crummy powers)

(4) sufficiency of the transfer (incomplete gifts)

(a) estate freezing

(i) grantor retained income trust (GRIT)

1. grit is defined as grantor transfers income to trust (retaining income) for a term of years less than his life expectancy, with remainder to children. The remainder would be a small portion of the valye of the property making up the corpus of the trust. – transfers currently, and pays a very small gift tax, because the actual is low or zero.

a. If grantor outlived term of years, the pos tranfer appreciation in the valyue of the corpus would escape the tax imposed by ch 11 and 12. – and transfer tax would be avoided on value of the transferred corpus and the post transfer appreication corpus.

b. If grantor underlived, than assets would be distribued to the remainder persons. – just like as if the transaction had never happened.

c. Interfamily gifts now they say that the value of retained interest is zero, so the gifted remainder is valued at 100% of the trust corpus! – so fuck you! [256](if children pay consideration, than it reduces the size of the gift)--1) must be a transfer of an interest in trust 2) for the benefit of a member of the transferror’s family 3) an interest in the trust must be retained by the tranferrror’s and an applicable family member – than the interests are valued at zero

i. Note, Tenants in Common, JTROS, or TIE 2702 doesn’t apply[257]

ii. This doesn’t apply to non-family members, so a this needs to be proportaiontally allocated between the lower valuation for the family members, and the higher valuation for the non-family members.

iii. If the grantor retains a life estate, and then he provides a secondary life estate to child (for example grantor for life, and than child for life), and if the grantor has the power of appointment to appoint the remainder, it is a completed transfer of the value of the corpus, ther remainder is a retrained interest, and both the life estate and the remainder are given a zero value under 2702, with the result that there is a transfer of the entire value of the corpus to child.[258] IF it was a power to revoke child’s interest, it would, of course, be an incomplete.[259]

(b) grant retained annuity trust (GRAT) or GRUT

(i) irrevocable right to receive as frequently as annually a fixed amount (% or dollar) of initial fair market value of the property [260]

(ii) a qualified unit trust (GRUT) is right to receive at least annually a fraction or percentage of the net value of the corps

(c) marital rights (dower, etc.) cannot be considered to be consideration[261]

(d) transfers that are a product of arm’s length negotiation are not taxable gifts[262]

(e) contributions to political parties are exempted from gifts[263]

(f) unlike the estate tax, a gift, in which the transferor retains the power to affect the time or manner of enjoyment is a gift[264]

(g) the same power of appointment that would be subject to the estate tax are subject to the gift tax, except that

(i) lapse of noncumulative annuals powers are exempt from the gift tax to the extent of 5k or the 5% of the value of the pro pout of which the power could be satisfied[265]

(ii) note: 2514 refers to the lifetime exercise of a power to transfer, rather than the estate tax which focuses on the existence of the power

(iii) a transfer which is conditioned upon something that is not beyond the grantor’s control, will not render it incomplete

(iv) unlike estate tax, a transfer that can be altered or revoked by the settleor only with the consider of a person possession a substantial adverse interest is a complete transfer and taxable[266]

(h) incomplete transfers are

(i) retained interest: value of the property transferred is the value of the property minus the retained interest

1. administrative powers don’t count

2. must effect beneficial enjoyment

3. must be exercisable in non-trustee capacity

(ii) revocable transfers are not taxable

1. must discretionary, not a mandatory or ascertainable duty[267]

2. discretionary power held by a third party doesn’t render the gift incomplete

(iii) mere power to change beneficiaries are the trust render the transfer incomplete

(5) disclaiming of gifts – no property interest is acquired[268]

(a) criteria for disclaimers

(i) Must be in writing[269]

(ii) Must be received by donor within 9 months or 9 months from the day on which the donee attains age 21[270]

1. This seems to foreclose the way to disclaim unidentified future intersts

(iii) Donee must not have accepted the interest or any of its benefits[271]

(iv) Must not have accepted the interest or its benefits prior to the disclaimer[272]

(v) Must pass to a person (except for the spouse) other than the person making the disclaimer[273] as a result of the refusal to accept the property

(1) must be real charity, and limited to the amount of the property deducted

(2)

ii) marital deduction

(1) same as for estate ta

(2) have

(3) same as under estate tax

(4) have to be married at the time of the gift

(5) can only deduct only once between spouses

(6) life estate with power of appointment

(7) q-tip

(8) can’t exclude more than you have deducted

26) For generation skipping purposes

a) Exclusions

i) If the transfer would be excluded uder the GT, it is exclused under the GST

ii) If they paid the gst before, and they are in the same generatoin as the persion who paid the tax, than there is no gst

b) Definitions[276]

i) Direct skip: bequest or inter vivos gift to a grandchild

(1) had the property been transferred first to the tranferor’s child, there would be some additional estate or gift tax consequence

(2) exception with predeceased parent[277][278]

ii) taxable termination: any termination (by death, lapse of time, release power) to an interst property held in a trust, except where a non-skip person has an interest in the property immediately after termination, or if no distribution may thereafter by made to a skip person[279]

(1)

iii) Taxable distribution: distribution of income or principle from a trust to a skipped person, unless the distribution is a taxable distribution or a direct skip[280]

c) Skip person

i) Skip person

(1) More than one generation below[281]

ii) Non skip person

d) Generation assignments

i) Family generatoins

(1) Ususually logic

(2) Except if deceased generation

ii) Non-family generation

(1) Imputed to be 12.5 years adopted child goes by years

iii) Entities

(1) Entities are the generation of their beneficial holders[282]

iv) Trusts, a trust is a skip person, if all the current interest in the trusts are held by skipped person, or if no person holds a present interst in the trust but all future distribution from the trust must be made to skipped persons.[283]

e) Amount taxable

i) Taxable distributions

(1) Amount receved (less expenses)[284] – if the trust pays the gst for the receipt of taxable distribution, the amount of the gst so paid is considered to be a distribution[285]

ii) Taxable termination

(1) Vale of all property that was subject of the termation, reduce by the expses of a nature that would be allowable under the state tax

iii) Direction: all property received by the transferee

iv) Formulae

(1) GST exemption: everyone gets 1m allocated by a transfer or his executor to any property[286] -- a certain amount of property will be exempted, to make the exclusion ratio zero

27) As compared to income tax

a) Recipeints of shares get basis in the shares[287]

b) Tranferred basis as gift as compared to devise

i) (better to give as a gift) -- check this

28) Policy issues

a) never been a good source of revenue

b) original justification is that we needed it in order to avoid concentrations of wealth

c) McCaffre: encourages rich people to spend money and to exasserbate differences in T's living standard

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